State v. Pounds

• Decision Date: 07 July 1975
• Docket Number: No. 8564,8564
• Parties: STATE of Texas, Appellant, v. Minor POUNDS, Appellee.
• Court: Texas Court of Appeals

Page 547

525 S.W.2d 547

STATE of Texas, Appellant, v. Minor POUNDS, Appellee.

No. 8564.

Court of Civil Appeals of Texas,

Amarillo.

July 7, 1975.

Rehearing Denied Aug. 4, 1975.

Lee H. Lytton, III, Asst. Gen. Counsel, Austin, for appellant.

Tom M. Richards, Lubbock, for appellee.

REYNOLDS, Justice.

The district court dismissed for want of jurisdiction the disbarment proceeding brought against a non-resident attorney licensed by the State of Texas and founded on alleged acts committed while he was a Texas resident. The trial court viewed the State Bar Act declaration that 'No disbarment proceedings shall be instituted against any attorney except in the District Court located in the county of said attorney's residence' as being mandatory and exclusive. In our view, the statutory proviso relates only to venue for disbarment proceedings instituted against resident attorneys and the act, not being a jurisdictional statute, does not deprive the district court of its implied jurisdiction to entertain disbarment proceedings against a non-resident attorney licensed by the state for acts committed while the attorney was a Texas resident. Reversed and remanded.

On 20 May 1974, the State of Texas, acting through the Grievance Committee for State Bar District No. 16, filed in the 72nd Judicial District Court of Lubbock County, Texas, a complaint alleging that Lubbock County resident Minor Pounds, a duly licensed attorney of the State of Texas and a member of the State Bar, had committed in Lubbock County in 1971 certain dishonorable acts that warrant his disbarment. Non-resident process authorized by Rule 108 ¹ was served on Pounds at Ponape in the Eastern Caroline Islands. Through his attorney, Pounds filed, in due order of pleading, a verified Rule 120a ² special appearance motion, a plea of privilege, ³ and a general denial. It was vowed in the special appearance motion that Pounds was not either at the time the proceeding was filed or at the time of his special appearance a resident of or domiciled in the State of Texas, and that he had committed no act subjecting him to the jurisdiction of the court.

At a 13 November 1974 hearing to first determine the issue of jurisdiction, the court heard the evidence summarized as follows: Licensed as an attorney only by the State of Texas, Pounds resided in Lubbock County and maintained a law office in the City of Lubbock until 30 September 1972. On that date, he moved to Santa Barbara, California, in order to study for the California bar examination. On 9 January 1973, having accepted employment as District Attorney for the Trust Territory of the Pacific Islands, a position which requires the officeholder to be licensed as an attorney in some state, Pounds left California and established residency at Kolonia, Ponape, Eastern Caroline Islands, Micronesia, ⁴ where he intends to remain. He has continuously served as district attorney and his contract has been extended to February, 1977. Since Pounds left Texas, he has not represented anyone in the state in any legal matter and he has returned but once to attend his father's funeral in April of 1974. For the State Bar's fiscal year from 1 June 1973 to 31 May 1974, Pounds paid the full dues required of a resident, but for the subsequent fiscal year, he paid non-resident dues. He maintains his Texas driver's license and renewed it as a non-resident in December of 1973. He is listed as a qualified voter on the Lubbock County voter registration lists as the result of a 1972 registration, but he owns no interest in his former law practice or in any Texas land or stock.

Following the hearing the court, expressing the feeling that McGregor v. Clawson, 506 S.W.2d 922 (Tex.Civ.App.--Waco 1974, no writ), compelled the sustention of the special appearance motion, dismissed the proceeding for want of jurisdiction. The one filed conclusion of law, paraphrasing the language of McGregor, reads:

Article 320a--1, Vernon's Civ.Stat., the State Bar Act, states in Section 6 that 'No disbarment proceedings shall be instituted against any attorney except in the District Court located in the county of said attorney's residence. . . .' Section 6 of Article 320a--1, said venue provision of the State Bar Act, is particular in nature and thereby applies to specific fact situations encompassed by the State Bar Act. Therefore, where the cause of action and remedy for its enforcement is derived not from the common law but from the statute the statutory provisions are mandatory and exclusive and must be complied with in all aspects, or the action is not maintainable. Therefore, to hold that the defendant in a case of this nature can be sued in a county not his residence would require the District Court to legislate and this being a legislative function is not for the district court to determine.

In McGregor, a disbarment proceeding instituted in Hill County against resident attorney McGregor was transferred to Coryell County under authority of Rule 257 when the trial court, after a hearing on the State Bar's motion for change of venue, concluded that neither party could obtain a fair trial in Hill County. In a mandamus action, the appellate court held the transfer order void, reasoning that 'the venue provisions of the State Bar Act are Particular in nature, and apply to specific fact situations encompassed by the State Bar Act,' which the legislature intended to control over Rule 257. In the course of the opinion, citation to State v. Dancer, 391 S.W.2d 504 (Tex.Civ.App.--Corpus Christi 1965, writ ref'd n.r.e.), a case deciding that an individual acting independently of the State Bar and of any district grievance committee is not authorized by the State Bar Act to institute disbarment proceedings, is made for the proposition that the legislature intended the State Bar Act as a full and comprehensive set of laws to cover completely the practice of law including the regulation and disciplining of lawyers; but McGregor, unlike the case at bar which poses the question of jurisdiction over the person of a non-resident attorney to inquire into the propriety of his acts while a resident, was concerned only with the proper venue for a disbarment proceeding brought against a resident Texas attorney.

It must be borne in mind that jurisdiction and venue are not synonymous. Jurisdiction is the power of the court to decide a controversy between parties and to render and enforce a judgment with respect thereto; venue is the proper place where that power is exercised.

Neither McGregor, nor any case cited to us, nor any reported case we have discovered, has been concerned with the jurisdiction of the Texas courts to entertain disbarment proceedings against a non-resident attorney for acts allegedly committed while he was a Texas resident. Properly, then, our first resort is to the State Bar Act to ascertain if it purports to either encompass or exclude that jurisdiction and, if not, to secondly explore whether that jurisdiction otherwise exists.

In 1939, the 46th Legislature passed an act having for its purpose the regulation of the practice of law, which was denominated in Section 1 as the State Bar Act and numbered Article 320a--1, Vernon's Texas Civil Statutes. Sec. 2 of the act created the State Bar as an administrative agency of the Judicial Department with powers to carry out the purposes of the act. Sec. 3 constitutes all those licensed to practice law as members of the State Bar and makes them subject to the act and to the rules adopted by the Supreme Court. The Supreme Court is authorized by Sec. 4 to propose rules and regulations which, when approved by a vote of the majority of the members of the State Bar, shall be promulgated for, among other matters, the disciplining, suspending and disbarring of attorneys. Sec. 5 provides that no rule or regulation shall abrogate 'the right of trial by jury in disbarment proceedings in the county of the residence of the defendant.' The complete heading preceding Sec. 6 is composed of these words:

Venue; conviction in court prerequisite to suspension; appeal; probation; disbarment

and Sec. 6 reads, in part:

Sec. 6. No disbarment proceeding shall be instituted against any attorney except in the district court located in the county of said attorney's residence . . ..

Sec. 7 is the provision that the invalidity of any portion of the act shall not invalidate any other portion. It was expressed in Sec. 8 that all laws or parts of laws in conflict with the act or with the rules and regulations adopted under the act were repealed.

Thus, it is apparent from a reading of the statute that there is no provision which, as such, purports to confer jurisdiction on any court. Those sections speaking of the proper forum as the district court in the county of the attorney's residence are directed not to jurisdiction, but to the right of trial by jury and to venue. Absent any provision for jurisdiction, it is more reasonable to believe that the legislature recognized the jurisdiction the district courts previously had exercised in disbarment proceedings as an implied power stemming from their constitutional jurisdiction, and intended to...