In re Caballero

• Decision Date: 23 April 2014
• Docket Number: No. 08–13–00069–CV.,08–13–00069–CV.
• Citation: 441 S.W.3d 562
• Parties: In re: Theresa CABALLERO, Relator.
• Court: Texas Court of Appeals

441 S.W.3d 562

In re: Theresa CABALLERO, Relator.

No. 08–13–00069–CV.

Court of Appeals of Texas, El Paso.

April 23, 2014.

Theresa Caballero, El Paso, pro se.

Cynthia Hamilton, Senior Appellate Counsel, Office of the Chief Disciplinary Counsel, Austin, for Real Party in Interest.

Before McCLURE, C.J., RIVERA, J., and BARAJAS, C.J. (Senior Judge), sitting by assignment.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

Theresa Caballero, Relator, has filed a petition for writ of mandamus against the Honorable George D. Gilles, seeking relief from two orders entered by him in a disciplinary action instituted against her by the Commission for Lawyer Discipline.¹ In a case of first impression, we must decide whether a district judge has the discretion to reject a Rule 11 settlement agreement entered into between an attorney and the Commission. This issue is decided by a divided panel. While we disagree about the resolution, none of us should be heard as condoning the conduct alleged.

FACTUAL AND PROCEDURAL SUMMARY

During the trial of a criminal case in 2011, the Honorable Steve Smith found Caballero in contempt of court and filed a misconduct complaint against her with the Commission for Lawyer Discipline.² The Commission filed a disciplinary petition against Caballero alleging that she committed professional misconduct in violation of Texas Disciplinary Rules of Professional Conduct 3.02, 3.04(a), 3.04(c)(5), 3.04(d), 8.04(a)(1), 8.04(a)(3), and 8.04(a)(4). This disciplinary action³ is based exclusively on the allegations of misconduct arising out of the criminal trial and made by Judge Smith. On August 20, 2012, the Honorable Juanita Vasquez–Gardner, who was assigned to hear the de novo contempt proceeding, found Caballero in contempt of court and assessed punishment at a fine of $100 for each violation for a total of $900, but the court probated the entire fine.⁴

On August 28, 2012, the Commission filed a motion for partial summary judgment based on the contempt judgment. It alleged that Caballero was collaterally estopped from relitigating the issues decided in the contempt proceeding. The Commission specifically sought partial summary judgment on the ground that Caballero's contemptuous acts constituted professional misconduct in violation of Rule 3.04(c)(5) which prohibits conduct intended to disrupt proceedings before a tribunal and Rule 8.04(a)(4) which prohibits conduct constituting obstruction of justice. The Commission did not move for summary judgment on any of the remaining allegations. Judge Gilles conducted a hearing on the motion on October 19, 2012, but he did not immediately rule. In late October or early November, the Commission and Caballero engaged in settlement negotiations and entered into an agreed judgment (1) finding that Caballero had engaged in professional misconduct in violation of Rule 3.04(c)(5) ; and (2) suspending her from the practice of law for nine months, but fully probating the suspension. The agreed judgment recited that the probated suspension would begin on December 1, 2012 and end on August 31, 2013. Caballero and her attorney signed the judgment as did the Commission.

On November 9, 2012, Judge Gilles notified the parties that he would grant the motion for partial summary judgment. The judge did not include a signed order with the letter because he believed that any order had to be signed in El Paso County.⁵ Ten days later, Judge Gilles sent a letter to Caballero and the Commission stating that he had received the agreed judgment reflecting the “contemplated settlement,” but he would not accept the settlement proposed by counsel. Judge Gilles did not provide a reason for rejecting the settlement agreement. The letter also informed the parties that the jury trial would begin on November 27, 2012. On November 20, 2012, the Commission sent a letter to Judge Gilles inquiring about the entry of the order granting partial summary judgment since an order had not yet been signed. The letter also informed him that the Commission did not intend to proceed to trial on the remaining allegations of professional misconduct, and consequently, jurors would not be necessary because the sole issue would be the appropriate sanction for the established misconduct. That same day, Caballero filed a motion to recuse Judge Gilles based on his refusal to enter the agreed judgment in accordance with the settlement agreement. The judge assigned to hear the motion to recuse denied it on December 21, 2012. Judge Gilles granted the Commission's motion for partial summary judgment on February 13, 2013 finding that Caballero engaged in acts of professional misconduct in violation of Rules 3.04(c)(5) and 8.04(a)(4). Shortly thereafter, Caballero filed a mandamus petition in this court challenging the trial court's refusal to enter judgment in accordance with the parties' agreement.

THE RULES OF DISCIPLINARY PROCEDURE

We begin with an overview of the disciplinary structure. The rules are divided into fifteen parts and the titles are telling. Part I addresses “General Rules.” Section 1.03 informs us that:

These rules are to be broadly construed to ensure the operation, effectiveness, integrity, and continuation of the professional disciplinary and disability system.

Part II creates the district grievance committees and provides for its governance. Herein we find the rule creating the election available to a respondent attorney.

2.15. Election

A Respondent given written notice of the allegations and rule violations complained of, in accordance with Rule 2.14, shall notify the Chief Disciplinary Counsel whether the Respondent seeks to have the Complaint heard in a district court of proper venue, with or without a jury, or by an Evidentiary Panel of the Committee....

The rules that follow describe the procedure for Evidentiary Panel hearings. There is no incorporation of the Texas Rules of Civil Procedure. Discovery is limited. The Evidentiary Panel may order the Commission and the respondent to participate in mandatory alternative dispute resolution as provided by Chapter 154 of the Civil Practice and Remedies Code or as otherwise provided by law when deemed appropriate. With regard to evidence, the panel chair shall admit all such probative and relevant evidence deemed necessary for a fair and complete hearing, “generally in accord with the Texas Rules of Evidence; provided, however, that admission or exclusion of evidence shall be in the discretion of the Evidentiary Panel chair....” Rule 2.17(E), (K) and (L). Rule 2.18 relates to the imposition of sanctions:

2.18. Imposition of Sanctions

The Evidentiary Panel may, in its discretion, conduct a separate hearing and receive evidence as to the appropriate Sanctions to be imposed. Indefinite Disability sanction is not an available Sanction in a hearing before an Evidentiary Panel. In determining the appropriate Sanctions, the Evidentiary Panel shall consider:

A. The nature and degree of the Professional Misconduct for which the Respondent is being sanctioned;

B. The seriousness of and circumstances surrounding the Professional Misconduct;

C. The loss or damage to clients;

D. The damage to the profession;

E. The assurance that those who seek legal services in the future will be insulated from the type of Professional Misconduct found;

F. The profit to the attorney;

G. The avoidance of repetition;

H. The deterrent effect on others;

I. The maintenance of respect for the legal profession;

J. The conduct of the Respondent during the course of the Disciplinary Proceeding;

In addition, the Respondent's disciplinary record, including any private reprimands, is admissible on the appropriate Sanction to be imposed. Respondent's Disability may not be considered in mitigation, unless Respondent demonstrates that he or she is successfully pursuing in good faith a program of recovery or appropriate course of treatment.

Part III is entitled “Trial in District Court.” These rules address the assignment of a judge; filing, service and venue; answer of the respondent; and discovery. Rule 3.06 provides for trial by jury:

3.06. Trial by Jury

In a Disciplinary Action, either the Respondent or the Commission shall have the right to a jury trial upon timely payment of the required fee and compliance with the provisions of Rule 216, Texas Rules of Civil Procedure. The Complainant has no right to demand a jury trial.

Rule 3.08 sets out the applicable rules for a trial in district court. Here, the Texas Rules of Civil Procedure do apply:

3.08. Additional Rules of Procedure in the Trial of Disciplinary Actions

In all Disciplinary Actions brought under this part, the following additional rules apply:

A. Disciplinary Actions are civil in nature.

B. Except as varied by these rules, the Texas Rules of Civil Procedure apply.

* * * * * *

G. It shall be the policy of the Commission to participate in alternative dispute resolution procedures where feasible; provided, however, that Disciplinary Actions shall be exempt from any requirements of mandatory alternative dispute resolution procedures as provided by Chapter 154 of the Civil Practice and Remedies Code or as otherwise provided by law. [Emphasis added].

Rules 3.09 and 3.10 explain the bifurcated trial procedure.

3.09. Judgment

If the trial court fails to find from the evidence in a case tried without a jury, or from the verdict in a jury trial, that the Respondent's conduct constitutes Professional Misconduct, the court shall render judgment accordingly. If the court finds that the Respondent's conduct does constitute Professional Misconduct, the court shall determine the appropriate Sanction or Sanctions to be imposed.... The trial court shall promptly enter judgment after the close of evidence (in the case of a nonjury trial) or after the return of the jury's verdict....

3.10. Imposition of Sanctions

The trial court may, in its discretion, conduct a separate hearing and receive evidence as to the appropriate Sanctions to be imposed. Private reprimand is not an available Sanction.

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