State v. Estes

• Decision Date: 20 October 1937
• Docket Number: No. 1699-6951.,1699-6951.
• Citation: 109 S.W.2d 167
• Parties: STATE v. ESTES.
• Court: Texas Supreme Court

109 S.W.2d 167

STATE v. ESTES.

No. 1699-6951.

Commission of Appeals of Texas, Section B.

October 20, 1937.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by the State of Texas, on the relation of a committee of practicing attorneys, to disbar Dee Estes from the practice of law. A judgment suspending the respondent under the first count of the petition and revoking his license under the second count was reversed, and judgment rendered for respondent, by the Court of Civil Appeals (82 S.W.(2d) 708), and the State brings error.

Judgment of the Court of Civil Appeals reversed, and trial court's judgment affirmed.

Frank A. Ogilvie and H. C. Wade, both of Fort Worth, for the State.

McLean, Scott & Sayers, Mike E. Smith, and S. E. Graves, all of Fort Worth, and T. F. Morrow, of Austin, for defendant in error.

TAYLOR, Commissioner.

This suit was filed by the State, on the relation of a committee of practicing attorneys residing in Tarrant county, against Dee Estes, a practicing lawyer of this State. The trial petition is in two counts. In the first count it is alleged that the respondent was guilty of "malpractice and fraudulent and dishonorable conduct" as an attorney "by illegally and fraudulently extorting money from Luna Buffalo, as guardian of the estate of Luna May Buffalo, a minor."

Judgment suspending the respondent from the practice of the law in this State for a period of six months from the date of the judgment was rendered under the first count of the petition upon findings of the jury.

The second count is set out in paragraph 5 of the petition, the allegations of which are substantially that the respondent, about the 13th day of April, 1928, was convicted in the District Court of the United States for the Northern District of Texas of the offense of using the United States mails to defraud in connection with the promotion of oil companies and syndicates; that under the laws of the United States the crime of using the mails to defraud is punishable by confinement in the penitentiary for more than one year, and therefore constitutes a felony; and that the respondent, having been convicted of a felony, should have his license to practice law revoked and canceled.

The judgment rendered by the trial court upon this count, omitting the clause decreeing the revocation of respondent's license, reads: "(2) That under paragraph five of plaintiff's amended original petition, the court is of the opinion that there was no issue of fact to be submitted to the jury, but under the record in the case there was only an issue of law for the consideration of the court; that thereupon the court announced that the respondent would not be permitted to introduce testimony of any character for the purpose of explaining or impeaching said judgment to which ruling of the court the respondent objected and excepted and subject to such objection and exception all parties in this case in open court agreed to waive the intervention of a jury and said matters were submitted to the court, and it appearing to the court that the defendant Dee Estes, was on the 13th day of April, A. D. 1928, convicted of a felony * * * in connection with a promotion of oil companies and syndicates, and by reason of his conviction it is mandatory on this court under Art. 311, Vernon's Annotated Civil Statutes of the State of Texas, to enter judgment revoking the defendant's license to practice law in the State of Texas."

The Court of Civil Appeals held that, the matters complained of by the relators having occurred more than four years before the suit was filed, article 5529 of the Revised Civil Statutes, providing that "every action * * * for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued," was applicable; and reversed the judgment of the trial court and rendered judgment in favor of the respondent. 82 S.W.(2d) 708.

In the last argument filed in this court on behalf of the respondent it is stated substantially that, as the decree of suspension was "merely for the period of six months from and after the date of judgment," the questions raised under that count had become moot, since more than six months had expired since the rendition of the judgment. It is further stated that aside from the matter of the four-year statute of limitation and laches the sole question to be determined is "whether or not the judgment of the Federal court of itself afforded sufficient grounds to revoke and cancel the license" of the respondent. The statute of limitation question will be first determined.

It is stated in an annotation in 45 A.L.R. p. 1110, under the heading "Statutory Limitation of Time for Disbarment Proceedings" that, while it has been said generally with respect to such proceedings that "in analogy to our statutes which bar prosecutions for misdemeanors there ought to be a limit to the time in which informations could be filed" (People ex rel. Noyes v. Allison, 68 Ill. 151), it seems that, "except in the few states which have enacted specific statutes on the subject, there is no limitation on the time for instituting disbarment proceedings except the inherent power of the court to refuse to hear an application to disbar which has been unreasonably delayed." (Italics ours). Cases from other states are there cited which support the annotation. It is further pointed out in the annotation that in Oklahoma, which has a limitation statute made specifically applicable to disbarment cases, it is held (In re Evans, 72 Okl. 215, 179 P. 922, 923) that "while the inherent power of the courts to disbar an attorney cannot be defeated by legislative enactment, the exercise of this power may be regulated within reasonable limits by statute."

It is stated in the text of volume 5 of American Jurisprudence, at page 434, that "the ordinary statutes of limitation have no application to disbarment proceedings, * * *" citing among other authorities the A.L.R. annotation, supra.

The text of Corpus Juris, vol. 6, p. 601, states that: "The statute of limitations is no defense to a proceeding for the disbarment or suspension of an attorney, nor will the courts establish a limitation as to the time in which such proceedings may be instituted by analogy to the statute of limitations unless, from the nature or circumstances of the particular case, it appears that it would be unjust or unfair to require the attorney to answer as to such occurrences." See, also, 7 C.J.S.Attorney and Client, p. 766.

The cases of Houtchens v. Mercer, by Chief Justice Cureton, 119 Tex. 244, 27 S. W.(2d) 795, and Houtchens v. State (Tex. Com.App.) 63 S.W.(2d) 1011, by Justice Critz when a member of the Commission of Appeals, are cited by the Court of Civil Appeals in the present case as authority for its holding with respect to the applicability of article 5529. The former case had to do mainly with the right of appeal in disbarment proceedings and the latter with the applicability in such proceedings of certain general rules of practice and procedure. In neither case was the question of limitation involved or passed upon.

We are of opinion that in the absence of a specific statute on the subject in this State there is no limitation on the time for instituting disbarment proceedings other than the power of the court to refuse to hear such a proceeding when it has been so unreasonably delayed as to make it unfair or unjust to require the respondent to answer. This holding is in accord with the well-nigh universal rule as is pointed out above. Nothing in the record suggests that the action of the trial court was unwarranted in not refusing to hear this case. There was no error in its holding that the statute of limitation is not applicable.

The judgment under the second count of the petition is predicated upon proof of the fact that the respondent had been convicted of a felony in a federal court as established by the judgment of conviction in that court. The judgment reads in part: "On this 13th day of April, 1928, this cause was regularly reached on the docket and called for trial. Then came the United States by their ...