# State v. Ingram

> Court of Appeals of Texas · November 28, 1973 · 502 S.W.2d 595

URL: https://www.frixlaw.com/law-library/cases/5041875

## Case

- **Full name:** The STATE of Texas v. Richard B. INGRAM
- **Court:** Court of Appeals of Texas
- **Decided:** November 28, 1973
- **Citations:** 502 S.W.2d 595; 1973 Tex. App. LEXIS 2066
- **Precedential status:** Published
- **Opinion:** Dissent by Preslar
- **Judges:** Ward, Preslar
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

PRESLAR, Chief Justice
(dissenting).
I respectfully dissent. A review of the record in this case leads ineluctably to the conclusion that this is a case of abused discretion. This error arises, not because the elements of a crime were established, but because the Court erred in failing to grant the relief to which the Plaintiff was entitled on the proof which it made. Rule 301, Tex.R.Civ.P., provides:
“The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.”
The Plaintiff-Appellant in this case proved facts, and the judge found facts, which entitle it to a judgment of disbarment, and in failing to render that judgment the Court committed error which in my opinion is reversible error within the meaning of Rule 434, Tex.R.Civ.P., as it was such error as amounts to a denial of the rights of the Plaintiff-Appellant. Under that Rule, I would reverse this case and enter the judgment that the trial Court should have entered — disbarment.
The big gap between the right and wrong of this judgment is that Appellee has been established to be untruthful and not trustworthy, yet with nothing more than the passage of time he can return to the practice of law in that very status. He will not be required to change his ways but as a perjurer and embezzler will be able to hold himself out to the public as an attorney at law, a member of the State Bar of Texas in good standing, and thus certified to have good credentials. Not the least of those credentials is that he has been thoroughly checked and screened as to moral character before he was allowed to enter the profession, and that as a member in good standing he is in full compliance with a strict code of professional ethics. The public is entitled to believe that if that were not so, a Bar, which polices itself, would oust him. As in other fields of endeavor, some attorneys are more skillful and proficient than others, but the public is entitled to have all of a single standard of honesty. The laws and the organization of the Bar are adequate to meet that very basic obligation, but the ultimate result rests with the Courts. In this case, the State, on behalf of the public, calls on this Court to require a proven perjurer and embezzler to abstain from the practice of law for five years, and to be entitled to reinstatement, that he should show that he has been of good moral character and has been liv *598 ing a life of generally good conduct. I think this attorney should be required to meet those requirements of one disbarred, as prescribed by Sections 32 and 33 of the State Bar Rules. As matters now stand, the attorney in this case stands adjudged to be a perjurer and embezzler by the trial Court and an appellate Court of this State, yet he is still an attorney and in a short time can hold himself out to the public as one certified to be of good moral character and worthy of the entrustment of their innermost confidence and most sacred rights.
The judgment should not be upheld on the premise that it can not be disturbed because it was an exercise of discretion. The majority follows State v. Pevehouse, supra, and adopts its language as to the broad powers of the trial Court in the exercise of its discretion. I disagree with that language because the degree of discretion lodged in the trial Court seems to be too great. It makes it appear as though the discretion was near absolute. This has the vice that it places a burden to overcome on an appellant which is greater than it should be. Also, it seriously affects the right of appeal in denying a full review by substituting the question of whether there was an abuse of this near absolute discretion. If the degree of discretion is to be measured, it appears that this is an instance in which it would be negligible, for after the facts are established, whether by a judge or jury, the trial Court then determines if those facts call for (a) reprimand, (b) suspension, or (c) disbarment. The trial Court does not occupy any superior position in this case which would give rise to discretion, because all that was before that Court is before this Court. There is a complete transcription of all of the evidence and exhibits, and there are the unchallenged findings of fact by the trial Court, which alone are sufficient to show error in the judgment based thereon. By the very nature of the question presented then, the exercise of discretion which we are talking about is only the application of the law to the proof made — did the trial Court abuse its discretion in that regard? A contention that there has been an abuse of discretion in such a case presents a question of law which can be decided by the appellate Court. State v. O’Dowd, 158 Tex. 348 , 312 S.W.2d 217 (1958). And it is to be decided by the appellate Court as any other question of law. Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.Sup.1963). The trial Court abuses its discretion when it fails or refuses to apply the law to conceded or undisputed facts. State v. Pevehouse, supra; 4 Tex. Jur.2d Appeal and Error — Civil Cases, Sec. 822; Southland Life Ins. Co. v. Egan, 126 Tex. 160 , 86 S.W.2d 722 (Tex.Comm’n App.1935, opinion adopted).
The writer is of the opinion that the trial Court erred, abused its discretion, in applying the law to the facts in that the proof made called for category (c), disbarment, rather than category (b), suspension. Plaintiff alleged and proved facts which entitled it to a judgment of disbarment, and I would reverse the judgment and render a judgment of disbarment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5041875. Public record. Not legal advice.