IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 06-1008

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In the Matter of = Eugene X.=20 Mercier

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On Appeal from the Board of = Disciplinary=20 appeals

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PER = CURIAM

=20 Upon conviction of certain crimes, an attorney=92s license must = be=20 suspended pending appeal. The Board of Disciplinary Appeals did so here, = but=20 also provided in the order that the attorney =93shall be disbarred=94 if = the=20 conviction was affirmed. The petitioner appeals on various grounds from = the=20 latter part of the order. Because we agree the Board=92s order of = disbarment is=20 premature, we reverse that portion of the order and affirm the rest.

=20 The Texas Rules of Disciplinary Procedure provide two means for=20 disciplining attorneys: (1) standard procedures in which grievance = panels or=20 district courts determine violations and sanctions, and (2) compulsory=20 procedures upon conviction of =93Serious=94 or =93Intentional=94 crimes. = Tex. R. Disciplinary P. Parts = II, III,=20 & VIII, reprinted in Tex.=20 Gov=92t Code,=20 tit. 2, subtit. G app. = A=961. In compulsory cases, the conviction alone = constitutes a=20 violation of the professional rules, and the mandatory sanction is = either=20 suspension or disbarment. See Tex. R. Disciplinary P. = 8.01=96.08.

=20 A jury convicted attorney Eugene X. Mercier of conspiracy to = commit=20 barratry and the trial court sentenced him to six months=92 confinement = suspended=20 for two years=92 community supervision. Mercier=92s appeal of the = conviction is=20 still pending. Because a barratry conviction is both a =93Serious=94 and = =93Intentional=94 crime, it is undisputed here that the compulsory = discipline rules=20 apply. Pending his criminal appeal, the = Board of=20 Disciplinary Appeals suspended Mercier=92s license to practice law as = required by=20 Rule 8.04, which states in pertinent part:

When an=20 attorney has been convicted of an Intentional Crime . . . he or she = shall be=20 suspended as an attorney licensed to practice law in Texas during = the appeal=20 of the conviction or the order of deferred adjudication. . . . Any = suspension=20 ordered during the appeal of a criminal conviction or probation without = an=20 adjudication of guilt is interlocutory and immediately terminates if the = conviction or probation is set aside or reversed.

Tex. R. Disciplinary P. 8.04. = Mercier=20 does not challenge this part of the Board=92s order.

=20 But he does challenge a part of the order providing for = disbarment if his=20 conviction is affirmed. While his principal complaint is that the Board = may=20 suspend but not disbar him because his sentence was fully probated, we = do not=20 reach that question because we agree with his alternate argument that=20 consideration of this issue is premature.

=20 When an attorney=92s license has been suspended pending a = criminal appeal,=20 Rule 8.05 provides for disbarment only after the conviction becomes = final:

When an=20 attorney has been convicted of an Intentional Crime, and that conviction = has=20 become final, or the attorney has accepted probation with or without an=20 adjudication of guilt for an Intentional Crime, the attorney shall be = disbarred=20 unless the Board of Disciplinary Appeals, under Rule 8.06, suspends his = or her=20 license to practice law. If the attorney' = s license=20 to practice law has been suspended during the appeal of the criminal = conviction,=20 the Chief Disciplinary Counsel shall file a motion for final = judgment of=20 disbarment with the Board of Disciplinary Appeals. If the motion is = supported by=20 affidavits or certified copies of court documents showing that the = conviction=20 has become final, the motion shall be granted without hearing, = unless=20 within ten days following the service of the motion pursuant to Rule 21a = of the=20 Texas Rules of Civil Procedure, upon the attorney so convicted or his or = her=20 attorney of record, the attorney so convicted files a verified denial = contesting=20 the finality of the judgment, in which event the Board of Disciplinary = Appeals=20 will immediately conduct a hearing to determine the issue. If no = Disciplinary=20 Action is pending at the time the conviction becomes final, disbarment = shall be=20 initiated by filing a Disciplinary Action.

Id. = 8.05 (emphasis=20 added). As both this Rule and the Board=92s order provide, disbarment = cannot take=20 place until (1) a conviction is final, (2) the Chief Disciplinary = Counsel files=20 a motion, (3) the attorney is given an opportunity = to contest=20 finality. And as Rule 8.04 and the Board=92s order further = provide,=20 compulsory disbarment is not an option if the conviction is reversed. As = all=20 these events have yet to occur, we agree the portion of the Board=92s = order=20 regarding disbarment, even though conditional, was premature.

=20 Accordingly, without hearing oral argument, see Tex. R. Disciplinary P. = 7.11, we reverse the part of the = Board=92s=20 order regarding disbarment without prejudice to refiling, and affirm the remainder.

OPINION=20 DELIVERED: December 21, 2007