Satterwhite v. State

• Decision Date: 23 September 1998
• Docket Number: No. 1474-97,1474-97
• Citation: 979 S.W.2d 626
• Parties: William SATTERWHITE, Jr., Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 626

979 S.W.2d 626

William SATTERWHITE, Jr., Appellant, v. The STATE of Texas.

No. 1474-97.

Court of Criminal Appeals of Texas En Banc.

Sept. 23, 1998.

Brian W. Wice, Houston, for appellant.

Jim Vollers, Special Pros., Matthew Paul, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge, delivered the opinion of the Court joined by MANSFIELD, KELLER, HOLLAND and WOMACK, Judges.

Appellant was indicted for violating V.T.C.A. Penal Code, Section 38.122 which makes it an offense for a person, with intent to obtain an economic benefit for himself, to hold himself out as a lawyer unless he is currently licensed to practice law in this State, another state, or a foreign country, and is in good standing with the State Bar of Texas. The indictment alleged that the offense was committed on or about December 13, 1993. On November 15, 1995, a jury found appellant guilty as charged in the indictment and assessed appellant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice at a term of four and one-half years, and assessed a $7,500.00 fine.

On direct appeal, the Corpus Christi Court of Appeals affirmed appellant's conviction, rejecting appellant's contention that the evidence was legally insufficient to sustain the jury's verdict. Satterwhite v. State, 952 S.W.2d 613 (Tex.App.-Corpus Christi, 1997). The majority held that, "[t]he retroactive effect of the payment of past-due State Bar dues had no effect on appellant's conviction for falsely holding himself out as an attorney while not in good standing with the State Bar." Id. at 618. To the contrary, the dissent concluded that appellant's payment of dues retroactively returned him to his former status and good standing with the State Bar and therefore the evidence was legally insufficient to show that appellant was not in good standing with the State Bar at the time of the commission of the offense. Id. at 621 (Hinojosa, J. dissenting).

The Court of Appeals' rendition of the facts is correct, therefore we take the liberty to recite them for the benefit of the bench and bar:

" On May 1, 1993, appellant was notified that his annual State Bar dues were due and payable by June 1, 1993. Prior to May 1, 1993, however, appellant was suspended for failure to meet the MCLE requirements. On July 1, 1993, the 30-day 'grace period' afforded attorneys to pay their bar dues had expired. Appellant was not sent a reminder notice because, as stated above, appellant was already on suspension for noncompliance with the MCLE requirements.

"On September 1, 1993, a letter was mailed from the State Bar to appellant notifying appellant that his license to practice law was suspended for nonpayment of State Bar dues. In October 1993, appellant sent two checks to the State Bar. These checks were not written in the correct amount and were returned by the State Bar. Appellant sent another check in November 1993, which was also written for an improper amount and returned. On November 8, 1993 a check was received from appellant in the correct amount, but this check was not paid due to insufficient funds. It was not until January 4, 1994, that appellant finally paid his bar dues in the proper amount.

"However, on December 13, 1993, at a time when appellant's licence to practice law in Texas was suspended, appellant represented John Lemke as his attorney of record in seven felony criminal cases. For this conduct, appellant was indicted under section 38.122 of the Texas Penal Code for falsely holding himself out as a lawyer." Satterwhite v. State, 952 S.W.2d at 614.

In the case before us, a case of first impression, we are faced with the issue of whether a retroactive return to pre-suspension status via the payment of past-due State Bar dues excuses an attorney from prosecution for illegal conduct committed by an attorney during that attorney's period of suspension. We hold that it does not and affirm the decision of the Court of Appeals.

Appellant was convicted for violating Section 38.122 of the Texas Penal Code (Vernon 1994). Section 38.122 provides:

"(a) A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer, unless he or she is currently licensed to practice law in this state, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed.

"b) An offense under Subsection (a) of this section is a felony of the third degree.

"c) Final conviction of falsely holding oneself out to be a lawyer is a serious crime for all purposes and acts, specifically including the State Bar Rules."

The record before us reflects that appellant intentionally and knowingly violated Section 38.122. First, appellant intended to obtain an economic benefit for himself by representing Mr. Lemke. Second, appellant held himself out as a lawyer to Lemke. Thirdly, appellant was not in "good standing" ¹ with the State Bar at the time he represented John Lemke because he was in default in the payment of his bar dues resulting in the suspension of his law license. ² Since the language of Section 38.122 provided no exceptions, appellant's prosecution and subsequent felony punishment under the statute was proper.

However, appellant argues that the retroactivity clause of Article III, section 7(A) of the State Bar Rules affects a lawyer's "good standing" insofar as liability under Section 38.122 is concerned. We disagree. Paying delinquent bar dues does not suggest that the attorney is absolved from prosecution for illegal conduct committed during the period of suspension.

Article III, Section 7(A) of the Texas State Bar Rules provides:

"When a member, who has been suspended for nonpayment of fees or assessments, removes such default by payment of fees or assessments then owing, plus an additional amount equivalent to one-half the delinquency, the suspension shall automatically be lifted and the member restored to former status. Return to former status shall be retroactive to inception of suspension, but shall not affect any proceeding for discipline of the member for professional misconduct." TEX. STATE BAR R. art. III, Section 7(A), reprinted in TEX. GOV'T CODE ANN. , Title 2, subtitle G. app. (Vernon 1983) (emphasis added).

We find that the emphasized language of section 7(A) only affects appellant's ability to resume the status of an active member of the State Bar. ³ Upon payment of his delinquent bar dues, appellant does not have to be re-admitted to the Bar, nor does he have to show his qualifications or competence to practice law. At most, the retroactivity clause places appellant in his previous position of being a licensed attorney authorized to practice law in Texas. The language of section 7(A) also indicates that appellant may still face possible administrative discipline by the State Bar for any conduct which occurred prior to the lifting of his suspension. Appellant is still subject to prosecution for illegal conduct committed by him during the period of suspension and any attempt by the State Bar to enact a rule which would alter or negate the Legislature's creation of a criminal offense would be unconstitutional. See McDonald v. Denton, 63 Tex.Civ.App. 421, 132 S.W. 823 (1910), error denied 104 Tex. 206, 135 S.W. 1148; Brown Cracker & Candy Co. v. City of Dallas, 104 Tex. 290, 137 S.W. 342 (1911)(If an executive agency or a local government should take action in the suspension of a law, independently of any delegation by the Legislature, that action could be nullified under Article 1, Section 28 of the Texas Constitution without a consideration of the question of legislative declaration of power.) Therefore, we hold that the retroactivity clause of section 7(A) does not affect appellant's criminal prosecution, but is strictly applicable to administrative proceedings conducted by disciplinary officials with the State Bar.

To support his position, appellant relies upon Hill v. State, decided by this Court almost three decades before the adoption of Section 38.122 by the Texas Legislature. Texas Penal Code, Section 38.122, added by Acts 1993, 73rd Leg., ch. 723, Section 5, eff. Sept. 1, 1993. This Court in Hill v. State, 393 S.W.2d 901 (Tex.Cr.App.1965) dealt solely with the issue of whether a defendant who was represented by an attorney during the period of time that the attorney's license was suspended for failure to pay bar dues was entitled to a new trial because of ineffective assistance of counsel. In Hill, this Court concluded that 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 unlicenced to practice law in this State. Id. at 904. We further noted that "[h]e [a delinquent attorney] only has to pay his dues to resume his status as a 'practicing lawyer.' Such attorney does not have to again show his fitness or qualifications to practice law." Id. at 904. This Court also concluded that such attorney "does not have to be re-admitted to the practice," and that "[h]is competency as an attorney has not been diminished." Id. at 904. Finally, we stated that the attorney faces no future disbarment proceedings, and he "automatically resumes his status as an active member of the State Bar of Texas." Id. at 904.

However, our holding in Hill and in another case recently decided by this Court, Cantu ⁴, can be distinguished from the instant case. Unlike the case at bar where this Court is deciding the issue of whether an attorney's payment of delinquent bar dues and his acts during the period of suspension were validated because his membership in the State Bar was "revitalized" retroactively, Hill and Cantu deal with whether a criminal defendant received effective assistance of counsel when...