holding record reflected appellant intended to obtain economic benefit for himself by representing client
How later courts described this case
- holding record reflected appellant intended to obtain economic benefit for himself by representing client
- offense of falsely holding oneself out as a lawyer has three elements: "First, appellant intended to obtain an economic benefit for himself by representing Mr. Lemke. Second, appellant held himself out as a lawyer to Lemke. Thirdly, appellant was not in 'good standing’ with the State Bar at the time he represented John Lemke because he was in default in the payment of his bar dues resulting in the suspension of his law license.”
- affirming felony conviction under § 38.122 of an attorney suspended from practice for failing to timely pay his annual bar dues
- administrative action taken by the State Bar to enact a rule that would alter or negate the Legislature’s creation of a criminal statutory offense was unconstitutional
Written by the judges who cited it.
The opinion
MANSFIELD, Judge,
concurring.
I join the opinion of the Court. It is clear from the record that appellant, knowingly and intentionally, falsely held himself out as a lawyer in violation of Texas Penal Code *630 § 38.122. The State met its burden of proving, beyond a reasonable doubt, appellant continued to practice law despite having knowledge that he was not in good standing with the State Bar of Texas for failure to pay his dues.
Concern has been expressed that our holding in this case might lead to criminal liability for, potentially, thousands of attorneys who inadvertently send their bar dues in a few days late, whose checks are “lost in the mail” or who, accidently, send a cheek for the wrong amount. Another situation, quite common, is where the check is returned for insufficient funds when the remitter, in good faith, believed there were sufficient funds in his account to cover the check. I believe this concern is misplaced. The State must prove intentional, knowing or reckless conduct on the part of the accused to obtain a conviction under Texas Penal Code § 38.122; such would rarely be provable in the instances cited in the two previous sentences. In any event, anyone indicted under section 38.122, where such circumstances existed, would have available the defense of mistake of fact under Texas Penal Code § 8.02.
With these comments, I join the opinion of the Court.