Opinion issued=20
July 3, 2008
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
____________
NO.=20
01-07-01104-CV
____________
DANIEL GOLDBERG,=20
Appellant
V.
THE COMMISSION FOR =
LAWYER=20
DISCIPLINE AND THE STATE BAR OF TEXAS,=20
Appellees
On Appeal from the =
295th=20
District Court
Harris County,=20
Texas
Trial Court Cause =
No.=20
2007-61478
CONCURRING=20
OPINION
<=
/SPAN>There=20
is much less to this case than meets the eye.=20
<=
/SPAN>Appellant,=20
Daniel Goldberg, challenges the trial court=E2=80=99s dismissal of =
his suit upon=20
the plea to the jurisdiction of appellees, the Commission for =
Lawyer=20
Discipline (the =E2=80=9CCommission=E2=80=9D) and the State Bar of =
Texas (the =E2=80=9CState=20
Bar=E2=80=9D). Goldberg seeks a declaration that he =E2=80=9Cis =
entitled to the immediate=20
restoration=E2=80=9D of his Texas law license and that =
=E2=80=9Cthe judgment of [his]=20
disbarment be declared void.=E2=80=9D He asserts that he is =
seeking to =E2=80=9Crestore=E2=80=9D=20
his law license, in contrast to having it =
=E2=80=9Creinstated.=E2=80=9D See Tex. R. Disciplinary P. =
11.01,=20
reprinted in Tex. =
Gov=E2=80=99t Code=20
Ann., tit. 2, subtit. G app. A-1 (Vernon 2005). Thus, he =
argues,=20
the trial court had subject matter jurisdiction to declare his law =
license=20
restored and his disbarment void. See id.
<=
/SPAN>In=20
support of his position, Goldberg relies on Cuellar v. =
State, 70=20
S.W.3d 815 (Tex. Crim. App. 2002). In Cuellar, the Texas =
Court of=20
Criminal Appeals noted that, after a criminal defendant has =
successfully=20
completed community supervision, the trial court may, in its =
discretion,=20
exercise =E2=80=9Cjudicial clemency=E2=80=9D and permit the =
defendant to withdraw his plea=20
and then dismiss the indictment against the defendant. Id. =
at=20
819=E2=80=9320 (citing Tex. Code. Crim=20
Proc. Ann. art 42.12, =C2=A7 20(a) (Vernon Supp. 2007)). =
Because the=20
conviction was set aside and Cuellar was =E2=80=9Cnot a convicted =
felon,=E2=80=9D the=20
court held that he could not be subsequently prosecuted for the =
offense of=20
being a felon in possession of a firearm. Id. at 820 =
(citing Tex. Penal Code. Ann. =
=C2=A7 46.04(a)=20
(Vernon Supp. 2007)).
<=
/SPAN>Here,=20
however, Goldberg, prior to the criminal district court=E2=80=99s =
dismissal of the=20
felony theft indictment against him, had accepted and completed =
community=20
supervision for having committed the intentional offense of =
aggregate=20
theft. Texas Rule of Disciplinary Procedure 8.05=20
provides,
When an attorney has been convicted of =
an=20
[i]ntentional [offense], and that conviction has become final, =
or the=20
attorney has accepted [community supervision] with or without an=20
adjudication of guilt for an [i]ntentional [offense], the =
attorney=20
shall be disbarred . . . .
Tex. R.=20
Disciplinary P. 8.05 (emphasis added). The only way for a =
person=20
who has actually been disbarred to get his law license back is to =
petition=20
the district court of the county of his residence for =
reinstatement. Tex. R. Disciplinary P. =
11.01.=20
Moreover, no person who has been disbarred =E2=80=9Cby reason of =
conviction of=20
or having been placed on [community supervision] without =
an=20
adjudication of guilt=E2=80=9D for an intentional offense is =
eligible to apply=20
for reinstatement until five years following the date of =
completion of=20
sentence, including any period of community supervision. =
Id.=20
(emphasis added).
<=
/SPAN>It=20
matters not that the felony theft indictment was subsequently =
dismissed=20
after Goldberg successfully completed community supervision. The =
simple=20
fact remains that Goldberg had previously accepted community =
supervision=20
for committing the intentional offense, and he suffered the =
compulsory=20
discipline of disbarment. Thus, he must wait five years after the =
date=20
that he successfully completed community supervision to petition =
the=20
district court for reinstatement. See id. Accordingly, I =
agree that=20
the trial court did not have subject matter jurisdiction to =
declare that=20
Goldberg=E2=80=99s law license was restored and did not err in =
granting the plea=20
to the jurisdiction of the Commission and the State=20
Bar.
Terry Jennings
Justice
Panel consists of Justices Taft, =
Jennings, and=20
Bland.
Justice Jennings,=20
concurring. |