holding that to come within ultra-vires exception, plaintiff “must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act”
How later courts described this case
- holding that to come within ultra-vires exception, plaintiff “must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act”
Written by the judges who cited it.
The opinion
ACCEPTED
03-15-00007-CV
5239813
THIRD COURT OF APPEALS
SEE AMENDED BRF AUSTIN, TEXAS
FILED ON 5/14/15 5/11/2015 6:29:38 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00007-CV
_______________
FILED IN
3rd COURT OF APPEALS
In the Court of Appeals AUSTIN, TEXAS
Third District of Texas 5/11/2015 6:29:38 PM
JEFFREY D. KYLE
Austin, Texas Clerk
_______________
JOHN DOE,
APPELLANT
V.
BOARD OF DIRECTORS OF THE STATE BAR OF TEXAS, COMMISSION
FOR LAWYER DISCIPLINE, AND LINDA ACEVEDO, IN HER OFFICIAL
CAPACITY AS THE CHIEF DISCIPLINARY COUNSEL OF THE STATE BAR OF TEXAS,
APPELLEES
_______________
Appealed from the 126th District Court
Of Travis County, Texas
Honorable Scott Jenkins, Judge Presiding
_______________
BRIEF OF APPELLEES
BOARD OF DIRECTORS OF THE STATE BAR OF TEXAS, COMMISSION
FOR LAWYER DISCIPLINE, AND LINDA ACEVEDO, IN HER OFFICIAL
CAPACITY AS THE CHIEF DISCIPLINARY COUNSEL OF THE STATE BAR OF TEXAS
(ORAL ARGUMENT REQUESTED)
_______________
LINDA A. ACEVEDO CYNTHIA CANFIELD HAMILTON
CHIEF DISCIPLINARY COUNSEL SENIOR APPELLATE COUNSEL
LAURA BAYOUTH POPPS OFFICE OF THE CHIEF DISCIPLINARY
DEPUTY COUNSEL FOR ADMINISTRATION COUNSEL
STATE BAR OF TEXAS
P.O. BOX 12487
AUSTIN, TEXAS 78711-2487
512.427.1350; 1.877.953.5535
FAX: 512.427.4167
NAMES OF PARTIES AND COUNSEL
APPELLANT
John Doe
COUNSEL FOR APPELLANT
GAINES WEST
State Bar No. 21197500
gaines.west@westwebblaw.com
JENNIFER D. JASPER
State Bar No. 24027026
jennifer.jasper@westwebblaw.com
ROB GEORGE
State Bar No. 24067623
rob.george@westwebblaw.com
WEST, WEBB, ALLBRITTON & GENTRY, P.C.
1515 Emerald Plaza
College Station, Texas 77845
Telephone: 979.694.7000
Fax: 979.694.8000
APPELLEES
BOARD OF DIRECTORS OF THE STATE BAR OF TEXAS
COMMISSION FOR LAWYER DISCIPLINE
LINDA ACEVEDO, CHIEF DISCIPLINARY COUNSEL OF THE STATE BAR OF TEXAS
STATE BAR OF TEXAS
P.O. Box 12487
Austin, Texas 78711
COUNSEL FOR APPELLEES
LINDA A. ACEVEDO
Chief Disciplinary Counsel
1
LAURA BAYOUTH POPPS
Deputy Counsel for Administration
CYNTHIA CANFIELD HAMILTON
Senior Appellate Counsel
STATE BAR CARD NO. 00790419
Email: cynthia.hamilton@texasbar.com
State Bar of Texas
P.O. Box 12487
Austin, Texas 78711-2487
512.427.1350; 1.877.953.5535
Fax: 512.427.4167
2
TABLE OF CONTENTS
PAGE
NAMES OF PARTIES AND COUNSEL .............................................................................. 1
INDEX OF AUTHORITIES...............................................................................................5
STATEMENT OF THE CASE .........................................................................................10
SOLE ISSUE PRESENTED ............................................................................................11
Did the district court correctly grant Appellees’ motion to dismiss for
want of subject-matter jurisdiction because immunity barred
Appellant’s claims and he lacked standing to bring them?
SUMMARY OF THE ARGUMENT ..................................................................................12
ARGUMENT AND AUTHORITIES .................................................................................13
I. A de novo standard of review applies ...........................................................13
II. The Chief Disciplinary Counsel has discretion to decide to present a
complaint alleging attorney misconduct to a summary disposition
panel with a recommendation for dismissal, and the disciplinary rules
prohibit the disclosure of records associated with the complaint once
the panel dismisses it .....................................................................................13
III. Sovereign immunity bars Appellant’s claims................................................16
A. Appellees enjoy the protection of sovereign immunity ......................16
B. The UDJA does not waive Appellees’ sovereign immunity for
Appellant’s claims ...............................................................................18
C. The exceptions cited by Appellant do not apply because they do
not fit the real substance of his claims ................................................19
1. Appellant does not challenge the validity of a statute .............. 20
2. The ultra vires exception does not apply ..................................22
3
IV. Statutory immunity bars Appellant’s claims .................................................24
V. Appellant lacks standing to bring his claims in district court .......................26
A. The relief sought by Appellant would usurp the Supreme
Court’s authority to regulate the practice of law.................................27
B. Appellant’s claims are moot ................................................................30
PRAYER .....................................................................................................................31
CERTIFICATES OF COMPLIANCE AND SERVICE ..........................................................32
4
INDEX OF AUTHORITIES
CASES PAGE
Bacon v. Tex. Historical Comm’n,
411 S.W.3d 161 (Tex.App.—Austin 2013, no pet.) ..........................13, 17, 26
Bd of Disciplinary Appeals v. McFall,
888 S.W.2d 471 (Tex. 1994) (orig. proceeding) (per curiam) .....................29
Bradt v. West,
892 S.W.2d 56 (Tex.App.—Houston [1st Dist.] 1994, writ denied) ............. 25
City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ...................................................................19, 24
Federal Sign v. Tex. Southern Univ.,
951 S.W.2d 401 (Tex. 1997) .........................................................................16
Houston Mun. Employees Pension Sys. v. Ferrell,
248 S.W.3d 151 (Tex. 2007) .........................................................................28
In re Caballero,
272 S.W.3d 595 (Tex. 2008) ...................................................................14, 20
In re State Bar of Tex.,
113 S.W.3d 730 (Tex. 2003) (orig. proceeding) ...........................................27
In re State Bar of Tex.,
440 S.W.3d 621 (Tex. 2014) (orig. proceeding) ...........................................28
Laubach v. State Bar of Tex.,
2000 WL1675701 (Tex.App.—Austin 2000, no pet.) (mem. op.) ................ 25
O’Quinn v. State Bar of Tex.,
763 S.W.2d 397 (Tex. 1988) .........................................................................14
Reata Const. Corp. v. City of Dallas,
197 S.W.3d 371 (Tex. 2006) (per curiam) ....................................................17
5
State Bar of Tex. v. Gomez,
891 S.W.2d 243 (Tex. 1994) ............................................................. 13-14, 28
State Bar of Tex. v. Heard,
603 S.W.2d 829 (Tex. 1980) (orig. proceeding) ...........................................27
State Bar of Tex. v. Jefferson,
942 S.W.2d 575 (Tex. 1997) (orig. proceeding) ...........................................29
State v. Sewell,
487 S.W.2d 716 (Tex. 1972) (orig. proceeding) ...........................................29
Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ...................................................................13, 17
Tex. Dep’t of Transportation v. Sefzik,
355 S.W.3d 618 (Tex. 2011) (per curiam) ............................16, 18, 19, 21, 22
Tex. Parks & Wildlife Dep’t v. Sawyer Trust,
354 S.W.3d 384 (Tex. 2011) .............................................................18, 19, 22
University Scholastic League v. Buchanan,
848 S.W.2d 298 (Tex.App.—Austin 1993, no writ) .....................................30
Willie v. Comm’n for Lawyer Discipline,
2011 WL 3064158 (Tex.App.—Houston [14th Dist.] 2011, pet. denied)
(mem. op.) ................................................................................................ 16-17
STATUTES AND RULES PAGE
TEX. CIV. PRAC. & REM. CODE §37.002(a) ..............................................................18
TEX. CIV. PRAC. & REM. CODE §37.006(b) ........................................................ 18-19
TEX. DISCIPLINARY RULES PROF’L CONDUCT, Preamble .........................................25
TEX. GOV’T CODE ANN. § 81.011(a) ........................................................................16
TEX. GOV’T CODE ANN. § 81.072(a) and (c)............................................................27
TEX. GOV’T CODE ANN. § 81.072(b)(10) .................................................................23
TEX. GOV’T CODE ANN. § 81.076(g)........................................................................17
6
TEX. RULES DISCIPLINARY P. R. 1.06G ....................................................................14
TEX. RULES DISCIPLINARY P. R. 1.06R ....................................................................14
TEX. RULES DISCIPLINARY P. R. 1.06S.....................................................................14
TEX. RULES DISCIPLINARY P. R. 15.09 ...............................................................25, 26
TEX. RULES DISCIPLINARY P. R. 2.10 .......................................................................14
TEX. RULES DISCIPLINARY P. R. 2.12 .......................................................................15
TEX. RULES DISCIPLINARY P. R. 2.13 ...........................................................15, 22, 30
TEX. RULES DISCIPLINARY P. R. 2.16 .................................................................15, 23
TEX. RULES DISCIPLINARY P. R. 2.17(J) ...................................................................15
7
No. 03-15-00007-CV
_______________
In the Court of Appeals
Third District of Texas
Austin, Texas
_______________
JOHN DOE,
APPELLANT
V.
BOARD OF DIRECTORS OF THE STATE BAR OF TEXAS, COMMISSION
FOR LAWYER DISCIPLINE, AND LINDA ACEVEDO, IN HER OFFICIAL
CAPACITY AS THE CHIEF DISCIPLINARY COUNSEL OF THE STATE BAR OF TEXAS,
APPELLEES
_______________
Appealed from the 126th District Court
Of Travis County, Texas
Honorable Scott Jenkins, Judge Presiding
_______________
BRIEF OF APPELLEES
(ORAL ARGUMENT REQUESTED)
_______________
TO THE HONORABLE COURT OF APPEALS:
Appellees, the Board of Directors of the State Bar of Texas, the Commission
for Lawyer Discipline, and Linda Acevedo, in her official capacity as the Chief
Disciplinary Counsel of the State Bar of Texas, submit this Brief in response to the
brief filed by Appellant, John Doe. For clarity, this brief refers to all three
8
appellees as “Appellees” and refers to Appellant as “Appellant.” The brief
designates references to the clerk’s record as “CR” followed by the page number(s)
where the referenced material can be found in the clerk’s record. References to
rules are references to the Texas Rules of Disciplinary Procedure unless otherwise
noted. 1 References to Appellant’s brief are designated “Appellant’s Br.” followed
by the page number where the referenced material can be found in the brief.
1
Reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G. app. A-1 (West 2013).
9
STATEMENT OF THE CASE
Type of Proceeding: Action for declaratory relief under the Uniform
Declaratory Judgments Act, TEX. CIV. PRAC. & REM.
CODE § 37 (West 2013)
Plaintiff/Appellant: John Doe
Defendants/Appellees: The Board of Directors of the State Bar of Texas
The Commission for Lawyer Discipline
The Chief Disciplinary Counsel of the State Bar of Texas
Trial Judge: The Honorable Scott Jenkins
Final Order: Order Granting Motion to Dismiss: On October 8, 2014,
the Honorable Scott Jenkins granted Defendants’ motion
to dismiss for want of jurisdiction.
10
SOLE ISSUE PRESENTED
Did the district court correctly grant Appellees’ motion to dismiss for
want of subject-matter jurisdiction because immunity barred
Appellant’s claims and he lacked standing to bring them?
11
SUMMARY OF THE ARGUMENT
Sovereign immunity protects the State Bar of Texas, as well as its various
departments and committees, from suit. And Rule 15.09 of the Texas Rules of
Disciplinary Procedure takes immunity a step further by granting absolute and
unqualified immunity to the Chief Disciplinary Counsel, Commission for Lawyer
Discipline, and Board of Directors of the State Bar of Texas (among others) for
any conduct in the course of their official duties. The immunity granted by Rule
15.09 extends to all actions at law or in equity. It bars all of Appellant’s claims.
Appellant’s claims also fail because of the prohibition against interference in
disciplinary proceedings. A district court cannot usurp the Texas Supreme Court’s
inherent and statutory authority to regulate the practice of law in Texas. The relief
that Appellant requested from the district court would interfere with the Supreme
Court’s authority because, in effect, it would require the district court to
promulgate a new rule regarding the confidentiality of disciplinary proceedings.
The Supreme Court has already promulgated a confidentiality rule, and its plain
language prohibits the relief sought by Appellant.
Because Appellant’s claims cannot survive the broad protection provided by
immunity or the prohibition against interference with the Supreme Court’s
authority to regulate the practice of law, the district court properly dismissed his
claims for want of jurisdiction.
12
ARGUMENT AND AUTHORITIES
I. A de novo standard of review applies.
Whether a district court has subject-matter jurisdiction is a question of law
that an appellate court reviews de novo. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The ultimate inquiry is whether the
facts presented in the pleadings affirmatively demonstrate a claim that is within the
district court’s jurisdiction. Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161,
171 (Tex.App.—Austin 2013, no pet.). If the inquiry involves the construction of
a statute (which an appellate court also reviews de novo), the primary objective is
to give effect to the statute’s plain language. Id.
II. The Chief Disciplinary Counsel has discretion to decide to present a
complaint alleging attorney misconduct to a summary disposition panel
with a recommendation for dismissal, and the disciplinary rules
prohibit the disclosure of records associated with the complaint once the
panel dismisses it.
Before a complaint alleging attorney misconduct may be litigated in an
administrative forum or a district court, it must first go through a screening process
at the agency level. This case focuses on actions taken during that preliminary
stage of the disciplinary process.
The Texas Rules of Disciplinary Procedure, which the Texas Supreme Court
promulgated pursuant to its inherent and statutory authority to regulate the practice
of law, govern the administrative screening process. State Bar of Tex. v. Gomez,
13
891 S.W.2d 243 (Tex. 1994). The disciplinary rules have the same force and effect
as statutes. In re Caballero, 272 S.W.3d 595, 599 (Tex. 2008); O’Quinn v. State
Bar of Tex., 763 S.W.2d 397, 399 (Tex. 1988).
The disciplinary process generally begins with the filing of a grievance
against an attorney. 2 TEX. RULES DISCIPLINARY P. R. 2.10. Within thirty days
after a grievance is filed, the Office of the Chief Disciplinary Counsel (CDC) must
review it and make a threshold screening decision known as “classification.” Id.
Classification involves a determination by CDC to categorize each incoming
grievance as either (1) an “inquiry” that alleges conduct which does not constitute
professional misconduct or (2) a “complaint” that alleges conduct which does
constitute professional misconduct. TEX. RULES DISCIPLINARY P. R. 2.10, 1.06G,
1.06S. Grievances classified as inquiries are dismissed, but a grievance classified
as a complaint is sent to the respondent attorney with notice to provide a written
response to the allegations within thirty days. TEX. RULES DISCIPLINARY P. R.
2.10.
Within sixty days after the deadline for a respondent attorney to provide a
written response to a grievance that has been classified as a complaint, CDC must
investigate the complaint and determine whether there is “just cause” to proceed.
2
“‘Grievance’ means a written statement, from whatever source, apparently intended to
allege Professional Misconduct by a lawyer, or lawyer Disability, or both, received by the
Office of Chief Disciplinary Counsel.” TEX. RULES DISCIPLINARY P. R. 1.06R.
14
TEX. RULES DISCIPLINARY P. R. 2.12. If CDC determines that there is no just
cause, the matter is placed on a dismissal docket for presentation to a summary
disposition panel of a grievance committee. TEX. RULES DISCIPLINARY P. R. 2.13.
CDC presents the complaint “together with any information, documents, evidence,
and argument deemed necessary and appropriate by [CDC]” without the presence
of either the complainant or the respondent. Id. A summary disposition panel may
vote to proceed despite CDC’s determination that just cause does not exist, or the
panel may dismiss the matter. Id. In either case, the panel’s decision cannot be
appealed. Id.
Confidentiality is a prominent feature of the disciplinary process. Rule 2.16
provides:
All members and staff of the Office of Chief Disciplinary Counsel,
Board of Disciplinary Appeals, Committees, and Commission shall
maintain as confidential all Disciplinary Proceedings and associated
records . . . .
TEX. RULES DISCIPLINARY P. R. 2.16. The disciplinary rules provide for a number
of specific limited exceptions to confidentiality, but none allows the disclosure of
records associated with a complaint dismissed by a summary disposition panel.
See, e.g., Id.; TEX. RULES DISCIPLINARY P. R. 2.17(J). Most notably, disciplinary
judgments that find professional misconduct and impose public sanctions are
excepted from the confidentiality requirements. TEX. RULES DISCIPLINARY P. R.
2.16.
15
Despite Rule 2.16’s clear mandate regarding confidentiality, Appellant filed
suit in district court seeking a declaration that the Chief Disciplinary Counsel was
required to provide him with a copy of its recommendation to a summary
disposition panel that resulted in the dismissal of a complaint that he had filed
against an attorney (CR 78-85). Appellant asked the district court to declare that
he was entitled to receive a copy of the recommendation and to order Appellees to
provide a copy (CR 84-85). He also sought the recovery of attorney’s fees, costs,
and interest (CR 84-85).
III. Sovereign immunity bars Appellant’s claims.
A. Appellees enjoy the protection of sovereign immunity.
Sovereign immunity protects the State of Texas, its agencies, and its officials
from lawsuits, including suits for declaratory or injunctive relief, unless immunity
has been explicitly waived. Tex. Dep’t of Transportation v. Sefzik, 355 S.W.3d
618, 621-22 (Tex. 2011) (per curiam); Federal Sign v. Tex. Southern Univ., 951
S.W.2d 401, 405 (Tex. 1997). The State Bar is a government agency that is entitled
to the protection afforded by sovereign immunity. TEX. GOV’T CODE ANN. §
81.011(a) (West 2013) (describing State Bar as administrative agency of judicial
department of government). As a standing committee of the State Bar, the
Commission is likewise protected by sovereign immunity. Willie v. Comm’n for
Lawyer Discipline, 2011 WL 3064158 (Tex.App.—Houston [14th Dist.] 2011, pet.
16
denied) (mem. op.). And as a government official, the Chief Disciplinary Counsel
is protected by sovereign immunity. See TEX. GOV’T CODE ANN. § 81.076(g)
(West 2013) (authorizing Commission for Lawyer Discipline, with advice and
consent of State Bar Board of Directors, to select a Chief Disciplinary Counsel to
serve as administrator of the State Bar’s grievance procedure).
Sovereign immunity includes both immunity from suit, which bars a lawsuit
unless the state has expressly consented to the suit, and immunity from liability,
which protects the state from judgments even where consent to sue has been
granted. Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006)
(per curiam). Such protection exists because “[a] lack of immunity may hamper
governmental functions by requiring tax resources to be used for defending
lawsuits and paying judgments rather than using those resources for their intended
purposes.” Id. at 375. Sovereign immunity also helps preserve the separation of
powers that is a fundamental aspect of a tripartite government. Bacon, 411 S.W.3d
at 172-73. Where sovereign immunity from suit bars a claim against a
governmental entity, such immunity deprives the trial court of subject-matter
jurisdiction over the claim. Miranda, 133 S.W.3d at 224.
In his brief, Appellant acknowledges that because of sovereign immunity, he
cannot bring a claim against Appellees except as expressly permitted by a
legislative waiver of immunity. Appellant’s Br. 7. He also acknowledges that the
17
Uniform Declaratory Judgments Act (UDJA) does not waive Appellees’ immunity.
Appellant’s Br. 7. Nonetheless, he argues that a district court has jurisdiction over
his claims because he is challenging (1) the validity of a statute and (2) ultra vires
acts by the Chief Disciplinary Counsel. Appellant’s Br. 7. Appellant’s argument
reflects a fundamental misunderstanding of these exceptions to sovereign
immunity.
B. The UDJA does not waive Appellees’ sovereign immunity for
Appellant’s claims.
There is no general right to sue a state agency for a declaration of rights.
Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011).
And the UDJA creates no such right because it does not operate as a general
waiver of sovereign immunity. Id. The UDJA merely provides that “[a] court of
record within its jurisdiction has power to declare rights, status, and other legal
relations. . . .” TEX. CIV. PRAC. & REM. CODE §37.002(a) (West 2013) (emphasis
added). It is nothing more than a procedural device that cannot enlarge a district
court’s jurisdiction to permit claims like those raised by Appellant. Sefzik, 355
S.W.3d at 621-22; Sawyer Trust, 354 S.W.3d at 388. Thus, “sovereign immunity
bars UDJA actions against the state and its political subdivisions absent a
legislative waiver.” Sefzik, 355 S.W.3d at 621. 3
3
The UDJA expressly waives sovereign immunity for certain specified claims, such as a
declaratory action that challenges the validity of a municipal ordinance. TEX. CIV. PRAC.
18
Because no provision of the UDJA can provide a district court with
jurisdiction in this case, Appellant could bring a declaratory action against
Appellees only if the underlying claim is one for which immunity has been
expressly waived. Id. A court must examine the “‘the real substance’” of a claim
to determine whether it falls within the scope of a waiver. Sawyer Trust, 354
S.W.3d at 389.
C. The exceptions cited by Appellant do not apply because they do
not fit the real substance of his claims.
In Sefzik, the Supreme Court made it crystal clear that sovereign immunity
bars UDJA actions against the state unless the underlying claim is one for which
immunity has been waived in express and unambiguous language. For example,
“the state may be a proper party to a declaratory judgment action that challenges
the validity of a statute.” Sefzik, at 622. And immunity does not prohibit a UDJA
action to challenge ultra vires conduct by a government official. Id. at 621-22.
To get around Sefzik’s clear proclamation that sovereign immunity bars
UDJA actions against the state absent a legislative waiver, Appellant
unsurprisingly relies on two exceptions to sovereign immunity that allow a plaintiff
to challenge (1) the validity of a statute and (2) ultra vires conduct by a state
official. But the truth is that his live pleadings asserted neither type of claim. His
& REM. CODE §37.006(b); City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex.
2009). Appellant has not identified any UDJA provision that even arguably waives
immunity in this case.
19
conclusory assertions regarding the nature of his claims cannot stand up to
scrutiny.
1. Appellant does not challenge the validity of a statute.
Appellant specifically asked the district court for declarations that (1) he is
entitled to receive a copy of the Chief Disciplinary Counsel’s recommendation to a
summary disposition panel prior to the presentation of the recommendation; (2) the
confidentiality provisions of Rule 2.16 do not apply to him and do not prohibit him
from receiving and Appellees providing a copy of the recommendation prior to its
presentation to a summary disposition panel; and (3) Linda Acevedo, in her
capacity as Chief Disciplinary Counsel, by and through her employee agents, acted
without legal authority in denying Appellant a copy of the recommendation.
Appellant also asked for an order requiring Appellees to provide a copy of the
recommendation to him, and he requested attorney’s fees, prejudgment and
postjudgment interest, and court costs (CR 84-85).
Nowhere in Appellant’s live pleadings did he challenge the validity of any
statute. The only statute he questioned was Rule 2.16.4 But rather than
challenging the validity of Rule 2.16, Appellant acknowledged its requirement that
Appellees maintain the confidentiality of all disciplinary proceedings (CR 81). He
did not attack the validity of the rule itself but, instead, challenged the application
4
The disciplinary rules have the same force and effect as statutes. Caballero, 272 S.W.3d
at 599.
20
of the rule to him as an individual who filed a complaint against an attorney. He
essentially argued that the Chief Disciplinary Counsel should have applied a
nonexistent exception to Rule 2.16.
A challenge to the application of a statute is not a challenge to the validity of
a statute. Appellant has made no claim that Rule 2.16 is unconstitutional or
otherwise impermissible. He has simply asked for review of the Chief Disciplinary
Counsel’s application of Rule 2.16. Because of the bar established by sovereign
immunity, a district court could consider such a claim only if Appellant articulated
a valid ultra vires claim. And even if Appellant alleged a valid ultra vires claim
against the Chief Disciplinary Counsel, it would not save his claims against the
Commission for Lawyer Discipline and the Board of Directors of the State Bar
because governmental entities are not proper parties to a suit seeking declaratory
relief for ultra vires action. Sefzik, 355 S.W.3d at 621.
In short, the real substance of Appellant’s claims leaves no room for an
argument that the district court had jurisdiction over the Commission for Lawyer
Discipline or the Board of Directors of the State Bar. Sovereign immunity barred
Appellant’s claims against both entities. And his claims against the Chief
Disciplinary Counsel could survive sovereign immunity only if they are valid ultra
vires claims.
21
2. The ultra vires exception does not apply.
Sefzik explained the interplay between sovereign immunity and ultra vires
acts by government officials. 355 S.W.3d at 621. The Supreme Court held that the
ultra vires exception allows claims against a state official for nondiscretionary
acts, in his or her official capacity, that are not authorized by law. The exception
does not apply if the official’s acts were discretionary. Id.; Sawyer Trust, 354
S.W.3d at 395 (Jefferson, C.J., concurring).
Appellant seeks to compel an affirmative act by a government official – the
provision of a report to him as a complainant. For an affirmative act to be
nondiscretionary, the law must indisputably require it. But Appellant has not cited
any law that even arguably required the Chief Disciplinary Counsel to provide him
with a copy of her recommendation to the summary disposition panel, and indeed
none exists.
In fact, neither Rule 2.13, which governs summary disposition, nor any other
provision of the disciplinary rules requires the Chief Disciplinary Counsel to even
prepare a written recommendation for submission to a summary disposition panel.
Instead, Rule 2.13 directs the Chief Disciplinary Counsel to present the complaint
“together with any information, documents, evidence, and argument deemed
necessary and appropriate by the Chief Disciplinary Counsel.” TEX. RULES
DISCIPLINARY P. R. 2.13 (emphasis added). This provision plainly grants the Chief
22
Disciplinary Counsel almost unfettered discretion to determine what to submit to a
summary disposition panel, including discretion to determine whether to prepare
and submit a written recommendation.
Moreover, another provision of the disciplinary rules explicitly disallows the
action Appellant seeks. As Appellant explicitly acknowledged in his pleadings
(CR 81), Rule 2.16 directs the Chief Disciplinary Counsel to maintain as
confidential all disciplinary proceedings and associated records. TEX. RULES
DISCIPLINARY P. R. 2.16. Aside from certain specified exceptions 5 to the
confidentiality mandate of Rule 2.16, its plain language clearly prohibits the Chief
Disciplinary Counsel from disclosing records associated with disciplinary
proceedings.
In short, no provision of law requires the Chief Disciplinary Counsel to
provide a complainant with a copy of a recommendation to a summary disposition
panel. And, in fact, the law not only provides broad discretion to the Chief
Disciplinary Counsel in relation to submissions to summary disposition panels but
also explicitly requires that all records associated with disciplinary proceedings
remain strictly confidential except as provided by limited exceptions that do not fit
5
For example, an exception allows for the disclosure of certain documents, upon request,
after misconduct is found and a public sanction is imposed (Rule 2.16(A)(2)). And, as
noted by Appellant in his supplemental brief, an exception provides for complainants to
attend evidentiary hearings (TEX. GOV’T CODE ANN. § 81.072(b)(10) (West 2013)). No
such exception directs the Chief Disciplinary Counsel to provide a copy of a summary
disposition recommendation to a complainant.
23
the facts of this case. Under the circumstances, it cannot be argued that Appellant
sought the performance of an act that was purely ministerial. See Heinrich, 284
S.W.3d at 372 (holding that to come within ultra-vires exception, plaintiff “must
allege, and ultimately prove, that the officer acted without legal authority or failed
to perform a purely ministerial act”).
The real substance of Appellant’s claims, then, is that he seeks the
amendment of Rule 2.16. His pleadings acknowledged the explicit prohibition
against the disclosure of the information that he wants disclosed without
questioning the provision’s validity. In light of this prohibition, his conclusory
assertion that the Chief Disciplinary Counsel acted ultra vires in denying disclosure
is illogical. Instead of seeking to compel a ministerial act that the law requires, he
has sought to compel an act that is explicitly prohibited. Therefore, he did not
plead a valid ultra vires claim.
IV. Statutory immunity bars Appellant’s claims.
Rule 15.09 of the Texas Rules of Disciplinary Procedure supplements
sovereign immunity. It provides absolute and unqualified immunity to virtually
everyone officially involved in the disciplinary process:
. . . All members of the Commission, the Chief Disciplinary Counsel
(including Special Assistant disciplinary Counsel appointed by the
Commission and attorneys employed on a contract basis by the Chief
Disciplinary Counsel), all members of Committees, all members of
the Board of Disciplinary Appeals, all members of the district
Disability Committees, all officers and Directors of the State Bar, and
24
the staff members of the aforementioned entities are immune from suit
for any conduct in the course of their official duties. The immunity is
absolute and unqualified and extends to all actions at law or in equity.
TEX. RULES DISCIPLINARY P. R. 15.09.
Much as the common law provides absolute immunity to judges and
prosecutors while engaged in judicial and prosecutorial functions, Rule 15.09
provides absolute immunity to a person performing an adjudicative or
prosecutorial function in the disciplinary system. See, e.g., Bradt v. West, 892
S.W.2d 56, 66-71 (Tex.App.—Houston [1st Dist.] 1994, writ denied) (explaining
purpose and application of doctrines of absolute judicial immunity and absolute
prosecutorial immunity). An obvious purpose of the immunity provided by Rule
15.09 is to allow the participants in the disciplinary system to discharge their
official duties without fear of being sued. Although absolute immunity might
result in unfairness to an individual plaintiff, it is vital to the effective operation of
a disciplinary system that serves primarily to promote the public interest.
Preamble, TEX. DISCIPLINARY RULES PROF’L CONDUCT.
Because immunity from suit under Rule 15.09 is absolute and unqualified
and extends to all actions at law or in equity, Appellees are immune from being
sued for their actions related to disciplinary proceedings regardless of the claim
asserted. TEX. RULES DISCIPLINARY P. R. 15.09; Laubach v. State Bar of Tex.,
2000 WL1675701 (Tex.App.—Austin 2000, no pet.) (mem. op.). And although
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Appellant argues that the immunity provided by Rule 15.09 is limited to suits
against Appellees in their individual capacities, the plain language of the rule says
otherwise as it specifies that they “are immune from suit for any conduct in the
course of their official duties.” TEX. RULES DISCIPLINARY P. R. 15.09
V. Appellant lacks standing to bring his claims in district court.
The district court correctly dismissed Appellant’s claims not only because of
immunity but also because he lacks standing to bring them. “The general test for
constitutional standing in Texas courts is whether there is a ‘real’ (i.e., justiciable)
controversy between the parties that will actually be determined by the judicial
declaration sought.” Bacon, 411 S.W.3d at 174 (citation omitted). For purposes
of standing, a claim must pass muster on three levels:
(1) Injury in fact: The plaintiff must have suffered the invasion of a
legally protected (cognizable) interest resulting in an injury that is
both (a) concrete and particularized and (b) actual or imminent
rather than conjectural or hypothetical;
(2) Causal connection: The injury must be fairly traceable to the
conduct of the defendant; and
(3) Not merely speculative: It must be likely that the injury will be
redressed by a favorable decision.
Id. at 175 (citations omitted).
Appellant’s pleadings did not present a justiciable controversy because a
district court cannot infringe on the Supreme Court’s administrative authority to
regulate the practice of law. As a result, the district court lacked subject-matter
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jurisdiction to issue the orders that Appellant requested. Appellant’s claims are
also moot.
A. The relief sought by Appellant would usurp the Supreme Court’s
authority to regulate the practice of law.
The Texas Constitution and the State Bar Act provide the Supreme Court
with authority to regulate the practice of law in Texas. In re State Bar of Tex., 113
S.W.3d 730, 732 (Tex. 2003) (orig. proceeding). From the Constitution, the Court
derives inherent regulatory authority that dictates a separation of powers and
implies the Court’s supervisory role in the regulation of the practice of law. Id.
From the State Bar Act, the Court derives statutory authority which gives it
“‘administrative control over the State Bar and provides a statutory mechanism for
promulgating regulations governing the practice of law.’” Id. This statutory
authority includes explicit power to establish disciplinary procedures in furtherance
of the Court’s authority to supervise attorney conduct, as well as to prepare,
propose, and adopt rules that it deems necessary for disciplining attorneys. TEX.
GOV’T CODE ANN. § 81.072(a) and (c) (West 2013). The purpose of the State Bar
Act is to aid the Court’s inherent power to regulate the practice of law. State Bar
of Tex. v. Heard, 603 S.W.2d 829, 831 (Tex. 1980) (orig. proceeding).
“[A] district court does not have authority to grant relief that would
unreasonably usurp the supervisory control vested exclusively in the [S]upreme
[C]ourt. . . . This prohibition includes the rendition of orders that would, as a
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practical matter, preempt [the Supreme] Court's authority.” Gomez, 891 S.W.2d at
244-45, 246 . Like the plaintiffs in Gomez, who asked a district court to force the
State Bar to implement a de facto rule requiring mandatory pro bono service,
Appellant seeks relief that would preempt the Supreme Court’s authority. The
declaratory judgment requested by Appellant would essentially rewrite the
confidentiality requirements established by the Court in Rule 2.16.
That Appellant ostensibly sought declaratory relief does not transform his
claim into one that the district court had authority to grant. Appellant’s request is
untenable because he effectively seeks a change to Rule 2.16 and any change to the
disciplinary rules may be made only by the Supreme Court acting in its
administrative capacity. Id.; see also Houston Mun. Employees Pension Sys. v.
Ferrell, 248 S.W.3d 151 (Tex. 2007) (affirming district court’s grant of plea to the
jurisdiction because plaintiffs sought declaratory relief regarding their rights under
a pension plan but the statute governing the pension plan did not provide a right to
judicial review of the pension board’s administrative decisions regarding the plan).
In short, a district court has no authority to interfere in disciplinary
proceedings at any stage of the disciplinary process. See, e.g., In re State Bar of
Tex., 440 S.W.3d 621 (Tex. 2014) (orig. proceeding) (granting mandamus relief
from district court’s order that directed the Commission to turn over investigative
records because “[a]n order that directly interferes with the Commission’s ability
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to collect and present evidence is as much a direct interference in the disciplinary
process as an order directed to a grievance panel itself”); State Bar of Tex. v.
Jefferson, 942 S.W.2d 575, 576 (Tex. 1997) (orig. proceeding) (granting
mandamus relief from district court’s order that enjoined proceedings during the
investigatory phase of the disciplinary process); Bd of Disciplinary Appeals v.
McFall, 888 S.W.2d 471, 472 (Tex. 1994) (orig. proceeding) (per curiam)
(granting mandamus relief from district court’s order enjoining a disciplinary
suspension ordered by the Board of Disciplinary Appeals because the disciplinary
rules “do not provide for interim equitable relief, and the district court did not have
the power to enjoin” the suspension); State v. Sewell, 487 S.W.2d 716 (Tex. 1972)
(orig. proceeding) (granting mandamus relief from district court’s order that
enjoined proceedings during the investigatory phase of the disciplinary process
because an injunction by a district court “is an interference with the grievance
procedures authorized by . . . the State Bar Act and constitutes a clear abuse of
discretion”).
This prohibition operates to prevent a district court’s interference in the
disciplinary process regardless of whether the party seeking relief is a respondent
or a complainant. If Appellant wants a new rule which would require the Chief
Disciplinary Counsel to prepare written summary disposition recommendations
and provide copies of them to complainants, he must petition the Supreme Court to
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promulgate a rule in its administrative capacity. He cannot ask the district court to
effectively force the de facto promulgation of such a rule.
B. Appellant’s claims are moot.
Appellant’s claims are moot because a decision in his favor would be an
advisory opinion. The summary disposition panel dismissed his grievance, and he
cannot appeal the dismissal. TEX. RULES DISCIPLINARY P. R. 2.13. As a result, the
disciplinary proceedings initiated by his complaint have terminated. Although he
could theoretically file another grievance in the future, any resulting injury or
dispute is merely hypothetical at this point and cannot be redressed by a favorable
decision.
Appellant urges this Court to overlook the mootness of his claims by
expanding the public interest exception to the mootness doctrine. However, the
facts of this case do not demonstrate the type of extraordinary circumstances that
would justify the expansion of the public interest exception. This is not a situation
like that presented in University Scholastic League v. Buchanan where an available
judicial remedy is rendered meaningless due to the inevitable passage of time in an
appeal. 848 S.W.2d 298 (Tex.App.—Austin 1993, no writ). It is a situation where
Appellant has failed to take advantage of the only available remedy – a petition to
the Supreme Court in its administrative capacity seeking the amendment of the
disciplinary rules.
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PRAYER
Because immunity bars Appellant’s claims and he has no standing to bring
them, Appellees respectfully pray that this Court affirm the Order Granting Motion
to Dismiss in all respects.
RESPECTFULLY SUBMITTED:
LINDA A. ACEVEDO
CHIEF DISCIPLINARY COUNSEL
LAURA BAYOUTH POPPS
DEPUTY COUNSEL FOR ADMINISTRATION
CYNTHIA CANFIELD HAMILTON
SENIOR APPELLATE COUNSEL
OFFICE OF THE CHIEF DISCIPLINARY
COUNSEL
P.O. BOX 12487
AUSTIN, TEXAS 78711-2487
512.427.1350; 1.877.953.5535
FAX: 512.427.4167
/s/ Cynthia Canfield Hamilton
CYNTHIA CANFIELD HAMILTON
SENIOR APPELLATE COUNSEL
STATE BAR OF TEXAS
STATE BAR CARD NO. 00790419
ATTORNEYS FOR APPELLEES
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CERTIFICATE OF COMPLIANCE
Pursuant to the Texas Rules of Appellate Procedure, the enclosed Brief of
Appellees contains approximately 5,701 words, which is less than the total words
permitted by the TRAPs. Counsel relies on the word count of the computer
program used to prepare this Brief.
/s/ Cynthia Canfield Hamilton
CYNTHIA CANFIELD HAMILTON
SENIOR APPELLATE COUNSEL
STATE BAR OF TEXAS
CERTIFICATE OF SERVICE
This is to certify that the above and foregoing Brief of the Board of Directors of
the State Bar of Texas, Commission for Lawyer Discipline, and Linda Acevedo, in
her capacity as the Chief Disciplinary Counsel of the State Bar of Texas, has been
served on Appellant, John Doe, by and through his attorneys of record, Mr. Gaines
West, Ms. Jennifer Jasper, and Mr. Rob George, West Webb, Allbritton & Gentry,
by electronic service through this Court’s electronic filing service provider on the
11th day of May 2015.
/s/ Cynthia Canfield Hamilton
CYNTHIA CANFIELD HAMILTON
SENIOR APPELLATE COUNSEL
STATE BAR OF TEXAS
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