Thacker, Matter of

• Decision Date: 08 September 1994
• Docket Number: No. D-4179,D-4179
• Citation: 881 S.W.2d 307
• Parties: In the Matter of Leslie Hazlett THACKER.
• Court: Texas Supreme Court

Page 307

881 S.W.2d 307

In the Matter of Leslie Hazlett THACKER.

No. D-4179.

Supreme Court of Texas.

Argued April 5, 1994.

Decided June 15, 1994.

Rehearing Overruled Sept. 8, 1994.

Dick DeGuerin, Leslie Hazlett Thacker and Chris Flood, Houston, for petitioner.

Christine E. McKeeman, Thomas H. Watkins, Dawn Miller, James M. McCormack and Linda A. Acevedo, Austin, for respondent.

CORNYN, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, HIGHTOWER, HECHT, ENOCH and SPECTOR, Justices, join.

In this attorney discipline case, we decide whether violation of TEX.PENAL CODE § 25.11 ("s 25.11") ¹ is a felony involving moral turpitude under the Texas Rules of Disciplinary Procedure. ² We hold that it is.

In January of 1992, Leslie Hazlett Thacker, a lawyer engaged primarily in the arranging of private adoptions, was convicted by a jury in the 263rd Judicial District Court of Harris County of purchase of a child and was assessed a penalty of ten years' probation and a $10,000.00 fine. ³ Although this conviction is on appeal, and for that reason has yet to become final, the State Bar of Texas sought from the Board of Disciplinary Appeals ("BODA") an interlocutory order suspending Thacker's license to practice law. ⁴ Finding that Thacker had been convicted of an intentional crime, ⁵ BODA ordered Thacker's license to practice law suspended, ⁶ and should her conviction become final, BODA ordered Thacker disbarred. ⁷

We first consider the State Bar's Motion to Dismiss For Want of Jurisdiction. The State Bar has challenged our appellate jurisdiction, arguing that BODA's order of August 25, 1993, entitled "Interlocutory Order of Suspension," is not an appealable order, and that a final order in this matter will not be rendered until, and only if, the appeal of Thacker's conviction becomes final. We overrule the State Bar's motion and hold that classification of a crime is a "determination" subject to our appellate review.

Rule 7.11 of the Texas Rules of Disciplinary Procedure provides: "An appeal from a determination of the Board of Disciplinary Appeals shall be to the Supreme Court." As it is undisputed that BODA's decision that violation of § 25.11 is a felony involving moral turpitude is a dispositive "determination," which if reversed would vacate not only Thacker's suspension from the practice of law, but also the sole basis for her disbarment, we hold that classification of a crime as a felony involving moral turpitude is a final determination subject to our review as per Rule 7.11.

Whether a crime is one involving moral turpitude is a question of law. State Bar of Texas v. Heard, 603 S.W.2d 829, 835 (Tex.1980). As we have recently stated, this legal question is to be resolved "by a consideration of the nature of the offense as it bears on the attorney's moral fitness to continue in the practice of law." In re Humphreys, 880 S.W.2d 402, 407 (Tex.1994) (quoting Heard, 603 S.W.2d at 835). When deciding whether a crime is a "felony involving moral turpitude," we limit our consideration to the nature or essence of the offense. Our inquiry relates to the classification of the crime, not the tribunal's subjective judgment of character of the particular lawyer convicted. In short, we classify the crime, not the lawyer. To try to determine whether a crime is one involving moral turpitude by attempting to distinguish between lawyers of "good" character who happen to have been convicted of a particular criminal offense, and lawyers of "bad" character whose conviction of a crime is indicative of their lack of fitness to practice law, would be a hopelessly confusing--and entirely subjective--task. That process would also entail looking behind a conviction in a way not sanctioned by the Texas Rules of Disciplinary Procedure. ⁸

Considering the nature of the offense as it bears on the attorney's moral fitness to continue in the practice of law represents the modern formulation of the moral turpitude standard, in lieu of older and far more vague standards, such as "the generally accepted moral code of mankind." See AMERICAN BAR ASSOCIATION MODEL RULES OF PROFESSIONAL CONDUCT 8.4 cmt. While we concede that even this standard does not provide a bright line of demarcation, the moral-fitness standard at least places the inquiry closer to the appropriate issue of concern--the continued fitness of the lawyer to practice. See Deborah L. Rhode, Moral Character as a Professional Credential, 94 YALE L.J. 491, 552 (1985) (criticizing criteria that do "nothing to refine inquiry, but merely [remove] it one step from its announced concern [of] fitness for legal practice").

Considering its relationship to an attorney's moral fitness to practice law, we conclude that violation of § 25.11 is a felony involving moral turpitude. ⁹ Section 25.11 was adopted to deter the potentially coercive effect of payments to expectant mothers at a time when the best interests of the child, and for that matter the mother and father, are most likely to be subordinated to greed or other ulterior motives. See Timothy L. White, Note, Toward a Dignified Theory of Children: Prohibition of Collaborative Reproduction, 19 TEX.TECH L.REV. 1091, 1110-1111 (1988) (citing § 25.11 as one example of the nation wide "baby-selling acts ... intended to address the potential for abuse in independent adoptions and specifically, as a perverse variation of independent adoption, the abuse inherent in 'black market' adoptions of 'sold' children"). Additionally, § 25.11 is calculated to protect the interests of the birth father, the adoptive parents, and the interests of society at large. See Avi Katz, Surrogate Motherhood and the Baby Selling Laws, 20 COL.J.L. & SOC.PROBS. 1, 10-18 (1986) (discussing, among others, the interest in preventing blackmail, destruction of the family, and coercion). The moral concerns attendant to the commission of this crime are particularly well-expressed by the Supreme Court of New Jersey in In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988):

The evils inherent in baby-bartering are loathsome for a myriad of reasons. The child is sold without regard for whether the purchasers will be suitable parents. The natural mother does not receive the benefit of counseling and guidance to assist her in making a decision that may affect her for a lifetime. In fact, the monetary incentive to sell her child may, depending on her financial circumstances, make her decision less voluntary. Furthermore, the adoptive parents may not be fully informed of the natural parents' medical history. Baby selling potentially results in the exploitation of all parties involved.

. . . . .

There are, in a civilized society, some things that money cannot buy. In America, we decided long ago that merely because conduct purchased by money was "voluntary" did not mean that it was good or beyond regulation and prohibition. Employers can no longer buy labor at the lowest price they can bargain for, even though that labor is "voluntary," or buy women's labor for less money than paid to men for the same job, or purchase the agreement of children to perform oppressive labor, or purchase the agreement of workers to subject themselves to unsafe or unhealthful working conditions. There are, in short, values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life.

Id. 537 A.2d at 1241-42 & 1249 (citations omitted).

In this case, regardless of Thacker's motives, the effect is the same: a mother was induced by the payment of money to give up her children without protection from overreaching and without assurance that the children's best interest will be protected. Even though it is difficult to sketch a clear boundary for the precise limits of a lawyer's continued moral fitness to practice, the lawyer convicted of purchase of a child has crossed that line and forfeited her privilege to continue the practice of law. Given the far-reaching public interests involved in such conduct, as well as the potentially coercive elements inherent in such acts, we conclude that the purchase of a child is a felony involving moral turpitude. Therefore, we affirm BODA's order of suspension.

DOGGETT, Justice, concurs in the judgment only.

GAMMAGE, Justice, dissenting.

I respectfully dissent. The majority of this court has managed, in derogation of its own rules, to establish an autocratic system of summary compulsory discipline unlike any other state, even in cases such as this where the underlying crime is not even of the type for which an attorney must be disbarred. Under our rules, an attorney must be disbarred or have her license suspended if she is convicted of an "Intentional Crime." TEXAS R. DISCIPLINARY P. 8.01-8.06. To be classified as an "Intentional Crime," the conviction must be of a crime which (1) "requires proof of knowledge or intent as an essential element" and which (2) is a "serious crime" involving moral turpitude. TEXAS R. DISCIPLINARY P. 1.06(O), (U). Thacker's conviction under Texas Penal Code § 25.11 fails both requirements.

First, violation of Texas Penal Code § 25.11 is not a crime which requires proof of knowledge or intent as an essential element. In other words, there is no mens rea requirement. See, e.g., In re Humphreys, 880 S.W.2d 402, 407 (Tex.1994) (willful attempt to evade tax); Muniz v. State, 575 S.W.2d 408, 413 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.) (willfully, knowingly and unlawfully conspiring to import marijuana). Without the requirement of intent, the crime cannot be classified as an "Intentional Crime" and cannot be the subject of compulsory discipline. TEXAS R. DISCIPLINARY P. 8.01. On this point, I must agree with the majority that Thacker has waived her argument, arguing only that violation of Texas Penal Code § 25.11 is not a crime involving moral turpitude.

The majority errs, however, in concluding that violation of section 25.11 is a crime...