State Bar of Texas v. McGee, 13-96-378-CV

CourtCourt of Appeals of Texas
Citation972 S.W.2d 770
Docket NumberNo. 13-96-378-CV,13-96-378-CV
PartiesThe STATE BAR OF TEXAS, Appellant, v. David Lee McGEE, Appellee.
Decision Date09 April 1998

Page 770

972 S.W.2d 770
The STATE BAR OF TEXAS, Appellant,
v.
David Lee McGEE, Appellee.
No. 13-96-378-CV.
Court of Appeals of Texas,
Corpus Christi.
April 9, 1998.

Page 771

Linda Acevedo, Asst. General Counsel, Austin, James A. Ehler, San Antonio, for appellant.

William A. Dudley, Scott T. Cook, Cook, Dudley & Associates, Corpus Christi, for appellee.

Before SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr. and CHAVEZ, JJ

OPINION

CHAVEZ, Justice.

This case concerns whether the 93rd District Court of Hidalgo County had jurisdiction over a declaratory judgment action filed by attorney David Lee McGee. The State Bar of Texas initiated internal grievance committee proceedings against McGee in Nueces County in August 1992. On November 5, 1992, McGee filed the declaratory judgment action seeking to have the Hidalgo County court (1) declare that he had a guaranteed right to communicate information to the public regarding his legal services, (2) approve specific advertisements used by McGee, and (3) find that Rules 7.01(a), 7.01(c), and & 7.01(d) of the Texas Disciplinary Rules of Professional Conduct are unconstitutional. 1

Page 772

1 On July 2, 1993, the State Bar filed a disciplinary action against McGee in the 319th District Court of Nueces County. In the Hidalgo County court, McGee filed a motion for summary judgment on March 10, 1994 seeking declaration that 1) his television advertisements were not misleading, and 2) rules 7.01(c) and 7.01(d) ("the disclaimer rules") were unconstitutional. Summary judgment was granted, and the State Bar now appeals from that summary judgment. 2

The State Bar raises two points of error on appeal, both challenging the jurisdiction of the Hidalgo County court. First, the State Bar contends that the Hidalgo County court lacked jurisdiction over the subject matter of McGee's lawsuit because the Nueces County court had exclusive jurisdiction over the allegations against McGee. Second, the State Bar contends that the Hidalgo County court erred in granting summary judgment because (1) no justiciable controversy existed because the State Bar had abandoned its allegation that McGee violated the disclaimer rules at the time the trial judge granted the summary judgment motion, and (2) genuine issues of material fact existed on the issue of whether McGee's advertisements were misleading. We determine that the Hidalgo County court was without jurisdiction to consider McGee's declaratory action, reverse the summary judgment granted by the Hidalgo County court, and render judgment that McGee take nothing.

The grievance committee derives its authority from our state legislature. See TEX. GOV'T CODE ANN. §§ 81.071 ("Disciplinary Jurisdiction"), 81.072 ("Disciplinary and Disability Procedures") (Vernon Supp.1998); TEX. DISCIPLINARY R. PROF'L CONDUCT 8.05 ("Jurisdiction"), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon Supp.1998) (TEX. STATE BAR R. art. X, § 9); TEX.R. DISCIPLINARY P. 2.01 ("Disciplinary Districts and Grievance Committee Subdistricts"), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A-1 (Vernon Supp.1998). As such, the grievance committee is an administrative agency of the judicial branch of our state government, functioning as an arm of the supreme court in the discharge of its professional policing duties. Galindo v. State, 535 S.W.2d 923, 925 (Tex.Civ.App.--Corpus Christi 1976, no writ); see also 7 TEX. JUR.3D Attorneys at Law § 68 (1997). The grievance committee is charged with the task of making an initial determination of whether there is just cause to believe an attorney has committed an act of professional misconduct. TEX.R. DISCIPLINARY P. 2.11, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A-1 (Vernon Supp.1998).

Because the grievance committee is an administrative agency, the doctrine of primary jurisdiction applies to its proceedings. See generally 2 TEX. JUR.3D Administrative Law § 78 (1995) ("Primary jurisdiction is a judicially created doctrine of abstention, whereby a court that has jurisdiction over a matter nonetheless defers to an administrative agency for an initial decision on questions of fact or law within the peculiar competence of the agency.").

In a recent case before this panel, we stated that the doctrine of primary jurisdiction is applicable where there arises a question of jurisdiction as between a court and an administrative agency. American Pawn and Jewelry, Inc. v. Kayal, 923 S.W.2d 670, 673 (Tex.App.--Corpus Christi 1996, writ denied). Primary jurisdiction is the principle which determines whether the court or the agency should decide a matter. Id. The underlying rationale for the primary jurisdiction doctrine is to ensure that a proper administrative agency will not be bypassed in a matter which has been especially committed to it by the legislature. Id.

Page 773

The test for applying the principle of primary jurisdiction is not whether some parts of the case are within the exclusive jurisdiction of the courts, but whether some parts of the case are within the exclusive jurisdiction of the agency. Foree v. Crown Central Petroleum Corp., 431 S.W.2d 312, 316 (Tex.1968). Because the...

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    ...abuse of discretion standard when reviewing a trial court's decision about whether an agency has primary jurisdiction. See State Bar v. McGee, 972 S.W.2d 770, 773 (Tex.App.-Corpus Christi 1998, no writ); Simmons v. Danco, Inc., 563 S.W.2d 376, 379 (Tex.Civ. App.-Dallas 1978, writ ref'd n.r.......
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