Robert Looney v. State

CV1-300

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-91-300-CV

ROBERT LOONEY,

APPELLANT

vs.

THE STATE BAR OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT

NO. 90-310-C26, HONORABLE VIRGIL MULANAX, JUDGE PRESIDING

PER CURIAM

Robert Looney appeals from the trial court judgment that suspended his law license

for sixty-six months. The State Bar of Texas (SBOT) brought a disciplinary action against Looney

based on multiple acts of misconduct involving several clients. In a jury trial, the jury found in

favor of the SBOT. The judge determined the sanction. We will affirm the judgment of the trial

court.

Looney brings eight points of error, contending that the trial court erred in: (1)

submitting questions of law to the jury and failing to submit instructions regarding mitigating

circumstances; (2) applying the wrong standard of proof; (3) imposing an excessive sanction; (4)

failing to allow the jury to determine the sanction, and (5) failing to join the Texas Supreme Court

as a party.

Appellant has not filed a statement of facts. Without a statement of facts, we

presume on appeal that all rulings at trial were correct and that sufficient evidence was introduced

to support the judgment. Murray v. Devco, Ltd. , 731 S.W.2d 555, 557 (Tex. 1987); Texas

Employment Comm'n v. Bell Helicopter Int'l Inc., 627 S.W.2d 524, 526 (Tex. App.--Fort Worth

1982, writ ref'd n.r.e.); see Tex. R. App. P. 52(a).

Charge Issues

In his first three sub-points under point of error one, Looney complains that the

trial court erred in submitting matters of law to the jury by formulating special issues based on

SBOT disciplinary rules, by submitting issues that asked whether his conduct was "prejudicial to

the interest of justice" or adversely reflected on his "fitness to practice law," and by failing to

instruct the jury about alcoholism as a mitigating factor.

Appellant has not supplied a statement of facts. To determine whether alleged

errors in the submission of an issue, instruction, or definition are reversible, the appellate court

must consider the pleadings, the evidence at trial, and the charge in its entirety. Island

Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986);

Denman v. Burris, 815 S.W.2d 793, 796 (Tex. App.--El Paso 1991, writ denied); Olivares v.

State, 693 S.W.2d 486, 491 (Tex. App.--San Antonio 1985, writ dism'd w.o.j.). We have,

nevertheless, reviewed the transcript. (1) In the transcript, we find a handwritten document

containing objections to the charge and requested instructions. The document appears to be signed

by the trial judge with the notation that the objections were overruled and the requests refused.

The objections made in this document in the transcript, however, are not the same

as Looney's objections on appeal, and therefore preserve nothing for review. See Board of

County Comm'r of the County of Beaver Oklahoma vs. Amarillo Hosp. Dist., 835 S.W.2d 115,

122 (Tex. App.--Amarillo 1992, no writ); Exxon Corp. v. Allsup, 808 S.W.2d 648, 655 (Tex.

App.--Corpus Christi 1991, writ denied). In the document in the transcript, Looney made general

objections to numerous questions, instructions, and definitions on the basis that the pleadings

were inadequate to support the charge. Looney also objected that certain instructions were not

"the law applicable to the case" and that the charge was being submitted without the instructions

or definitions necessary if the jury found that certain violations had occurred. (2) These are not the

objections made in his points on appeal. Id. We have no record that enables us to tell if the

objections on appeal were ever made in the trial court. Looney has waived the first three sub-points under point one.

In his fourth sub-point under point of error one, Looney complains that the trial

court failed to submit several instructions on alcoholism as a mitigating factor. Assuming we can

review the sub-point based on the document in the transcript, Looney's brief supplies no argument

or authority to support his position. He has waived this sub-point on appeal. See Tex. R. App.

P. 74(f). Further, the point lacks merit.

Some jurisdictions allow alcoholism as a defense or mitigating factor in disciplinary

actions. Patricia Sue Heil, Tending the Bar in Texas: Alcoholism as a Mitigating Factor in

Attorney Discipline, 24 St. Mary's L.J. 1263 , 1282 (1993). Other jurisdictions recognize

treatment for alcoholism as a mitigating factor. Id. at 1283 . Texas now recognizes recovery from

substance abuse as a factor that may be considered in imposing sanctions. In Texas, the Rules of

Disciplinary Procedure state that disability "resulting from the use of alcohol or drugs may not

be considered in mitigation, unless Respondent demonstrates that he or she is successfully

pursuing in good faith a program of recovery." Tex. R. Disciplinary P. 2.17, 3.10, reprinted in

Tex. Gov't Code Ann., tit. 2, subtit. G app. 1-A. (3) Even then, mitigation affects only the

imposition of sanctions, a function that the judge performs and that does not require jury

instructions. We overrule point of error one in its entirety.

Standard of Proof

In points of error two and three, appellant complains that the court deprived him

of due process under both the United States Constitution and the Texas Constitution by instructing

the jury to render its verdict based on a "preponderance of the evidence" standard. He argues that

the correct standard is "clear and convincing evidence." We disagree.

Disciplinary proceedings in Texas are civil. State v. Evans, 774 S.W.2d 656 , 657

n.1 (Tex. 1989); McInnis v. State, 618 S.W.2d 389, 392 (Tex.Civ.App.--Beaumont 1981, writ

ref'd n.r.e.), cert. denied, 456 U.S. 976 (1982). The standard of proof used is preponderance of

the evidence. McInnis, 618 S.W.2d at 397 ; State Bar Rules art. X, § 16.

Even if the charge instructed the jury to use an incorrect standard of proof, without

a statement of facts we have no way of determining whether any error was reversible. Tex. R.

App. P. 81(b)(1). The evidence presented at trial may have met the test of "clear and convincing"

evidence as well as the test of "preponderance of the evidence." We overrule points of error two

and three.

Sanctions

In points of error four, five, and six, Looney complains that the trial court imposed

an overly long suspension. Looney's premise is that the maximum total length for a suspension

is three years. The State Bar Rules, however, say that the term of suspension "shall not exceed

3 years for each separate act of misconduct." State Bar Rules, Art. 10, § 23 (emphasis added);

see State v. Malone, 720 S.W.2d 842, 843 (Tex. App.--Beaumont 1986, no writ)(term of

suspension fixed for each separate act of professional misconduct rather than for each complaint).

Looney further complains that the trial court improperly attempted to circumvent

the appellate process by making the sanctions extend "forward and back" to total sixty-six months

without regard for any action taken by the appellate court. In the judgment, four clauses impose

four separate periods of suspension. Each clause sets out one or more specific client names (the

"matter"), gives the number of months of suspension, and specifies the dates on which each period

of suspension begins and ends. The period of suspension specified for the second matter uses

calendar dates that begin on the day after the last calendar day of the first suspension; the third

period begins after the second; the fourth after the third.

The specific paragraph about which Looney complains reads:

It is further ORDERED, that should every act or omission of misconduct found

with respect to any specific period of time for which Respondent is suspended from

the practice of law be finally held by a court of competent jurisdiction to be error

and be set aside by final judgment, all remaining periods of suspension shall run

consecutive so that Respondent will be suspended from the active practice of law

from January 12, 1991 for sixty-six (66) full months or for the maximum time,

consecutively, permitted by the periods of suspension in the final judgment that are

finally affirmed.

(Emphasis added.) The judgment is not attempting to set a sixty-six month suspension regardless

of any appellate court action. (4) The controlling language is "or for the maximum time

consecutively, permitted by the period of suspension . . . that are finally affirmed."

The purpose of the paragraph about which Looney complains is to make sure that

all periods of suspension affirmed on appeal run consecutively. That is, if the suspension related

to the second matter were not affirmed, then the suspension related to the third matter would begin

the day after the first suspension ended. Even if the final total period of suspension was less than

sixty-six months, nevertheless, there would be no gaps of time during which Looney would not

be suspended, only to be suspended again. Rather, if the appellate court strikes the second period

of suspension, for example, then all of the periods coming after the second one would begin to

be served earlier than otherwise would have been the case. We overrule points four, five, and

six.

In point of error seven, Looney complains that the jury should have determined the

appropriate sanction. Texas law does not support his position. Under Texas law, sanctions are

within the sound discretion of the trial court. Ingram v. State, 511 S.W.2d 252, 253 (Tex. 1974);

Malone, 720 S.W.2d at 843 . We overrule point of error seven.

Supreme Court as Party

In his eighth point of error, Looney complains that the Supreme Court of Texas,

as the body that issued his license to practice law, was an indispensable party. We disagree. The

Government Code provides that the Supreme Court shall prepare and adopt necessary procedures

for disciplining attorneys. Tex. Gov't Code Ann. § 81.072 (b) (West 1988). The Supreme Court

has delegated authority over discipline to the State Bar. State Bar Rules, art. 10, § 1. Looney

does not challenge that delegation as improper. We overrule point of error eight.

We affirm the judgment of the trial court.

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: November 24, 1993

Do Not Publish

1. 1 Authority exists that some errors may be preserved for review via the transcript. General

Life and Accident Ins. Co. v. Handy, 766 S.W.2d 370, 373 (Tex. App.--El Paso 1989, no

writ)(complaint about special issues waived because not in transcript ); see also 31 Jeremy C.

Wicker, Civil Trial and Appellate Procedure § 636, at 398 (Texas Practice 1985) (errors in the

charge not based on evidentiary matters may be preserved in the transcript). Even if the error is

preserved for review, the problem of determining harm from the error in the overall context of

the trial without a statement of facts remains. Tex. R. App. P. 81(b)(1).

2. 2 This last objection appears to be based on Looney's premise that the jury, not the judge,

should impose sanctions. As discussed later in this opinion, the trial judge imposes the sanctions.

3. 3 The current rules of disciplinary procedure do not apply to proceedings such as this one that

began before May 1, 1992. Tex. R. Disciplinary P. 1.04. We note, however, that a previous

rule stated that the trial court "shall consider, in addition to any other relevant matters, the nature

and degree of misconduct . . . ." State Bar Rules, Art. 10, § 23, reprinted in Tex. Gov't Code

Ann., tit. 2, subtit. G app. (West 1988). This would appear to have allowed a trial judge to

consider recovery from alcoholism as a mitigating factor with regard to the degree of sanction

imposed. See Smith v. O'Neill, 813 S.W.2d 501 (Tex. 1991) (recovery from cocaine addiction

enough of a change in circumstances that trial judge should have held a hearing to consider

reinstating revoked disciplinary probation).

4. 4 The judgment perhaps would have been more clear if the first sentence had said "any" act

or omission rather than "every."