State ex rel. Chandler v. Dancer

• Decision Date: 27 May 1965
• Docket Number: No. 117,117
• Citation: 391 S.W.2d 504
• Parties: STATE of Texas ex rel. Sidney P. CHANDLER, Appellant, v. Neal DANCER et al., Appellees.
• Court: Texas Court of Appeals

Page 504

391 S.W.2d 504

STATE of Texas ex rel. Sidney P. CHANDLER, Appellant, v. Neal DANCER et al., Appellees.

No. 117.

Court of Civil Appeals of Texas, Corpus Christi.

May 27, 1965.

Rehearing Denied June 17, 1965.

Sidney P. Chandler, Corpus Christi, for appellant.

Roger Butler, Corpus Christi and Robstown, for appellees.

GREEN, Chief Justice.

This is a disbarment proceeding filed in the 28th District Court of Nueces County, Texas, by appellant Sidney P. Chandler, a practicing attorney at law and member of the State Bar of Texas, against appellees, residents of Nueces County, both of whom are also attorneys at law and members of the State Bar. Pleas to the jurisdiction were sustained, and the petition as to both appellees was ordered dismissed by the trial court. This appeal is from such order.

As we view the record, the issue we are called upon to decide narrows down to this: Does an individual attorney at law, acting independently of the State Bar and of any District Grievance Committee of the State Bar, have legal authority to institute civil proceedings in a state district court seeking disbarment or suspension of license of another attorney at law?

(1) Our answer is that he does not, and we affirm the judgment of the district court.

Appellant contends that he, as a practicing attorney, was authorized to institute this proceeding by virtue of Art. 314, Vernon's Ann.Tex.Civ.St., which reads:

'The judge of any court, a practicing attorney, a county commissioner or justice of the peace may file with the clerk of the district court a sworn complaint of fraudulent or dishonorable conduct or malpractice on the part of any attorney at law.'

Articles 315 and 315, V.A.T.S. provide for the procedure to be had in court upon the filing of such sworn complaint.

(2) We hold that Articles 314, 315 and 316 were repealed by the passage, in 1939, of the State Bar Act, being Art. 320a-1, V.A.T.S., and the Rules Governing the State Bar of Texas, adopted by Members of the State Bar of Texas, and Promulgated by The Supreme Court of Texas, Vernon's Ann.Civ.St. following article 320a-1. A statement of these Rules, with amendments, is contained in Volume 1A, Vernon's Texas Civil Statutes Annotated, page 203, et seq. Section 8 of the State Bar Act (Acts 1939, p. 64) reads as follows:

'All laws or parts of laws in conflict with this Act or with the rules and regulations adopted under this Act by the Supreme Court are hereby repealed.'

The purposes sought to be accomplished by the State Bar Act and the State Bar Rules are set forth in a review of the statutes enacted by the Legislature for the regulation of the practice of law in Hexter Title & Abstract Co. Inc. v. Grievance Committee, Fifth Congressional Dist., State Bar of Texas, 1944, 142 Tex. 946, 179 S.W.2d 946, 157 A.L.R. 268, State v. O'Dowd, 158 Tex. 348, 312 S.W.2d 217, and in Arnett v. State, Tex.Civ.App.1957, 304 S.W.2d 386, writ ref. n. r. e. In Hexter, supra, the Supreme Court, through Chief Justice Alexander, said:

'In 1933 the Legislature enacted Penal Code, Article 430a, Vernon's Ann.P.C., Acts 1933, p. 835, ¹ which carefully defined what constituted the practice of law and designated who were prohibited from so practicing. In 1939 the Legislature went one step further and enacted the State Bar Act, Vernon's Ann.Civ.Stat. art. 320a-1, Act 1939, 46th Leg., p. 64, which had for its purpose the further regulation of the practice of law. That act created the organization known as the State Bar, composed of the registered licensed attorneys of the State, and constituted it an administrative agency of the judicial department. The same act empowered the Supreme Court, with the approval of a majority of the registered licensed lawyers, to prescribe rules and regulations 'for disciplining, suspending, and disbarring attorneys at law; for the conduct of the State Bar; and prescribing a code of ethics governing the professional conduct of attorneys at law.' The act prohibited those not members of the State Bar from practicing law, and empowered the agency there created to carry out the purposes of the act. The primary purpose of the Legislature in the enactment of the above legislation was to protect the public by eliminating from the law profession those morally unfit to enjoy the privileges and those lacking in proper training and other qualifications necessary to perform the services required of an attorney. * * * It is apparent, therefore, that those who are to be entrusted with the opportunities of such a position should be possessed of a high degree of integrity. In recognition of this the Legislature has set up machinery for the establishment of canons of ethics for the profession, and the disbarment of those guilty of fraudulent or dishonorable practice or malpractice. Again, it would be useless to establish high standards of morality for members of the profession if those who are not members, and therefore not bound by such canons, could practice the arts of the profession. The State has a vital interest in the regulation of the practice of law for the benefit and protection of the people as a whole, and the legislation above referred to was adopted in furtherance of a wholesome public policy.'

The machinery mentioned by Chief Justice Alexander as being set up 'for * * * the disbarment of those guilty of fraudulent or dishonorable practice or malpractice' (it will be noticed that the Supreme Court did not say additional machinery) was authorized by the Legislature in Sec. 4, Subd. (a), art. 320a-1, State Bar Act, which reads in part as follows:

'From time to time as to the Court may seem proper, the Supreme Court of Texas shall prepare and propose rules and regulations for disciplining, suspending, and disbarring attorneys at law; for the operation, maintenance and conduct of the State Bar; and prescribing a code of ethics governing the professional conduct of attorneys at law.'

The remainder of this subdivision details the manner in which such rules and regulations shall be submitted to the State Bar members for voting thereon.

(3) Under the authority of the above statute, the State Bar Rules were prepared by the Supreme Court, submitted to and approved by the members of the State Bar, and duly promulgated. These rules are at the least quasi-statutory, and have the same force and legal effect upon matters to which they relate as the Texas Rules of Civil Procedure have to matters to which they relate. Rattikin Title Co. v. Grievance Committee of the State Bar of Texas, Tex.Civ.App., 272 S.W.2d 948; Cochran v. Cochran, Tex.Civ.App., 333 S.W.2d 635, writ ref. n. r. e.

Art. XII of the Rules is entitled 'Discipline of Members; Unauthorized Practice of Law.' Sections 1 through 33, covering nine pages of Vol. 1A, V.A.T.S., pp. 221-230 incl., deal with the subject of misconduct of State Bar members, and discipline, including suspension and disbarment of members. A grievance committee for each congressional district of the State is provided, with all details for the appointment, tenure, and duties of such committee fully set forth. Professional misconduct is defined. These rules place the handling of complaints against attorneys at law, both before the Grievance Committee and in the courts, in the hands of the Grievance Committee of the district in which the attorney resides. Sections 11-20 inclusive, deal with the filing of complaints with the committee, investigation by the committee, hearing before the committee with the right to require attendance of witnesses, and the action which may be taken by the committee on the complaint in cases where no court trial is required. Section 12 provides that the proceedings before the committee be kept private, thus indicating a desire to protect an unjustly accused lawyer from suffering damage to his reputation.

Sections 21-31, inclusive, under the title heading-C. Procedure by Formal Complaint-deal with the procedure when formal complaint seeking reprimand, suspension, or disbarment of an attorney for professional misconduct as defined in Secs. 8 and 9 of Art. XII, is filed by the committee in the district court. Reference is here made to the State Bar Rules for further reading thereof. The right of trial by jury in the home county of the accused lawyer is protected.

The rules governing reinstatement of disbarred attorneys, Art. XII, Secs. 32 and 33, provide that the District Grievance Committee be notified of any petition filed in district court by a disbarred lawyer for reinstatement, and states that such committee may contest the application, and that either party, petitioner or the Grievance Committee, has the right of appeal. Effective participation of a District Grievance Committee in such hearing requires that it be familiar with the facts of the situation. All of this indicates that the District Grievance Committee is considered an integral part of disciplinary procedures.

In St. Louis S. W. Ry. Co. v. Kay et al., 85 Tex. 558, 22 S.W. 665, the Supreme Court said that:

'The question of repeal, like every other question arising upon the construction of a statute, must be solved by determining as near as may be the intent of the legislature.'

Notwithstanding the question as to the existence of an inconsistency between the State Bar Act and Art. 314, we feel that the repeal of Art. 314 has been effected. There is a long line of cases holding that a statute intended to prescribe the only rules governing a particular area of law repeals prior statutes which prescribed other rules in that same area of law, even though there is no repugnancy. Bryan v. Sundberg, Tex.Sup.Ct., 1849, 5 Tex. 418; Rogers v. Watrous, Tex.Sup.Ct., 1852, 8 Tex. 62; Tunstall v. Wormley, Tex.Sup.Ct., 1881, 54 Tex. 476; St. Louis S. W. Ry. Co. v. Kay, supra; Motor Inv. Co. v. City of Hamlin, 1944, 142 Tex. 486, 179 S.W.2d 278; Bank of Atlanta v. Fretz, 1950, 148 Tex. 551, 226 S.W.2d 843; First Nat. Bank v. Lee County Cotton Oil Co., Te...