*1 procedure, ment here is far from ideal

sufficiently raised the before the trial issue Warren, Compare with

court. 693 S.W.2d at 416.8 We sustain one. judgments pun- reverse the as to the ishment and remand the causes to the trial

court. BARNES, Appellant, TEXAS, Appellee.

The STATE BAR OF No. 13-92-396-CV. Appeals

Corpus Christi. 13,

Oct. Opinion Granting Rehearing in Part Denying Rehearing

and Otherwise 3, Nov. charges by reading 8. The court advocated the use of a harm of the indictment and the Houston statement, analysis prosecutor’s in addition to the test. Lara v. voir dire the failure to Warren State, (Tex.App. plea was read the indictment and enter a harm- — Houston Lara, ref’d), denied, pet. cert. U.S. less. 740 S.W.2d at 828. Our case has no [1st Dist.] showing arraignment pres- outside the 110 S.Ct. 107 L.Ed.2d 57 similar any reading court in Lara found that because the defendant ence of the nor of of the indict- arraigned presence ment to the harms mentioned and outside the apparent avoided in Lara are and because the was informed of here. *2 Carolyn pro se. McCormack, Counsel, James M. Gen. Acevedo, Dawn Miller and Linda Asst. Gen. Counsels, Austin, appellee. C.J., SEERDEN, Before and DORSEY HINOJOSA, Jr., G. JJ. FEDERICO

OPINION Jr., HINOJOSA,

FEDERICO G. Justice. a licensed Texas attorney, disciplinary from a appeals brought Bar of against her four points Texas. Barnes raises points. and the Bar raises two cross judgment trial We reverse the court’s judgment appellant. in favor of render points of Since Barnes’ error concern lawsuits, dis- specific conduct in we first two facts of cuss the relevant each suit. Suit way money learn how much Toni made depose subpoena her and the records. practiced law Victoria. Toni Knaupp testified that Barnes called her and approxi- retained Barnes to collect very upset deposition because the $8,000 mately past-due child going interrupt plans. her vacation *3 ex-husband, allegedly owed Rob- Knaupp deposition offered if to cancel the Turley, ert and to a motion file to increase produced Barnes Toni’s W-2 forms and bank support. child on behalf of Toni deposition statements before the date. Turley, petition against Turley filed a Robert responded get Barnes that she could not register foreign support to order and sev- and that these items she did not know about eral motions. May hearing. the 22nd Turley Lynn Knaupp, Robert retained response deposition In to the notice and Victoria, attorney practicing represent in to tecum, subpoena duces Barnes filed a motion Knaupp him in the case. filed an answer and protective Upon for hearing order.3 the mo- Modify to and “Motion Motion for Enforce- 1) 19, 1986, May tion on the trial court reset Turleys’ ment of Prior Order.”1 The motions 2) 20th, deposition May May to reset the hearing May were set for on 3) 29th, hearing May to 22nd and ordered the that, Knaupp testified in order to deter- produced. hearing, documents mine how much child should Knaupp Robert Barnes informed that she was not Toni, pay going agreed exchange produce she and Barnes to to the documents and that she 29, 1986, going to file April their suit. clients’ W-2 forms. On Knaupp enclosing sent a letter to 19, 1986, May On Barnes filed suit requesting copies Robert’s W-2 forms and Turley. styled Knaupp and Robert Knaupp May Toni’s forms. until W-2 waited “Toni U. & C.S. Machalec Barnes v. for Toni’s W-2 forms. When the Lynn Knaupp,” alleged, Robert L. & arrive, Knaupp forms not W-2 did served part, modify in that motion Robert’s to and deposition Barnes with a to notice take Toni’s illegal motion to enforce were “filed with an subpoena and a duces tecum.2 Since improper and motive which was not warrant 22nd, May case was scheduled to be heard on alleged ed or authorized.” Barnes also Knaupp deposition May scheduled for [Knaupp] “proceeded to coerce [Barnes] Knaupp 19th. testified that she did not have Contempt threats and Sanctions interrogatories requests time to send out give [Knaupp’s] did not in to [Barnes] de production May appear deposi 22nd hear- because mands or at the scheduled ing Knaupp date. It to her that tion” and to seemed the fastest “refused reschedule any checking, savings, alleged 1. Robert in his “Motion for En- checks on or other finan- upon accounts held in name forcement of Prior Order” that the divorce de- cial Toni’s which cree, (2) authority sign part, pay to and all she had the federal ordered Toni to one-half of the supporting papers and transporting income tax returns work costs of their child for custodial- years Toni for the tax 1983-1985. purposes. alleged visitation Robert also that the eight child had made at least court-ordered visits order, Tulsa, protective 3.In her motion for Barnes al- to his home in Oklahoma from her home that, 12, 1986, Victoria, leged May paid she was served with Texas and that Toni had not him deposition subpoena and duces tecum notice any money expenses as her share of the travel give testimony and alleged incurred in these visits. Robert that Toni produce things. and other Barnes documents $1,800 expenses. owed him for these Robert prohibit Knaupp from asked the trial court attorney’s asked the court to award him the fees taking deposition Toni's because it was sched- expended portion which he had to enforce this when Barnes would out of state and uled the divorce decree. purpose it was scheduled for alleged Modify,” Robert in his “Motion to sought oppressing harassing Toni. Barnes Austin, he had moved from Tulsa to Texas and protection subpoena the trial court’s because the now to his child's Victoria residence. lived closer produce documents duces tecum ordered Toni sought, part, frequent pos- He access or more beyond scope discovery per- which were session of the child. 186a and were irrelevant. mitted TexR.Civ.P. alleged producing cost of Barnes also subpoena produce: imposed 2. The asked Toni to all the documents an undue burden statements, deposit slips, expense and canceled on Toni. bank 21, 1987, a Fifth Barnes filed August agree to On [Barnes] unless would deposition Lemons suit. Amended Petition would demands which [Knaupp’s] exorbitant as a added Griffin petition, Barnes Barnes client.” prejudiced [Barnes’] have alleged that Griffin acted defendant. exemplary damages sought actual he initiated probable cause when without Barnes’ initiation attorney’s fees. Due to honestly, he did third-party suit because complaint Knaupp filed a good believe that reasonably, Bar Grievance against her with guilty Products Mark Window Committee. further practices. Barnes alleged acts and maliciously because acted

alleged that Griffin The Lemons Suit to receive third-party suit initiated the he Texas and to harass South insurance funds *4 Brown, Inc., Edwards, Parker, & d/b/a costs, attor- expenses, and increase its (South Texas), Office Products South Texas to file neys’ prompted Griffin fees. The suit against the John Barnes to file suit retained against Barnes with the State complaint a (Lemons). Company, Inc. South Lemons Bar of Texas. it defec- alleged that Lemons had sold Texas Griffin, an attor- Disciplinary Suit The blinds. John tive Venetian Victoria, Lem- represented ney practicing disciplinary alleged in the Bar The State that, on Griffin testified ons in the suit. rep Carolyn Barnes Machalec suit that while 1986, 25, Texas’s August he noticed South in the resented Toni place on deposition to take president of separate suit on behalf Barnes filed a 9, 10,1986. However, September October Tur against Robert herself and Toni setting three obtained a trial Barnes attorney, Lynn Knaupp. addi ley and his day days was scheduled Barnes tion, alleged after Griffin that while Bar Griffin, Brown, Edwards, Parker, deposition. realizing that he take the & represented Inc., Products in the deposition Texas Office more time between South needed d/b/a petition an date, she filed amended a motion for Lemons date and the trial filed against the defendant’s motion, initiated suit opposed the continuance. Barnes attorney, John Griffin. subse- trial court denied it. Griffin and the motion, trial quently amended the and the tried to a disciplinary suit was The file a granted him a continuance to court knowingly filed which found that supplier of the third-party against the trial court suits.5 The and Lemons On November Venetian blinds. consti- acts and conduct found that Barnes’ “Third-Party Disciplinary a Action”4 violations of separate Lemons two tuted 7-102(A)(2).6 blinds, judg- The trial court’s supplier of the Mark Win- Rule part, as follows: provides, ment dow Products. jury: Question Special 18 asked alleged that Mark Window Products 4. Lemons Carolyn Respondent, Did Barnes, ship represented vertical "that it would wooden client, representation her Ed- and that the blinds and head rails tracks" and/or Inc., Brown, wards, Tex- South Parker & d/b/a order, working good mer- arrive in blinds would Products, knowingly file Plaintiffs' as Office installation, chantable, quali- ready excellent for Law- in the Lemons Amended Petition Fifth alleged ty, guaranteed. Lemons and satisfaction suit? representations, it or- of these that as result questions. "Yes” to both The answered head rails and dered wooden vertical blinds with Representing Within the a Client 6.DR 7-102. Window Products. Lemons tracks from Mark of the Law Bounds false, representations alleged mis- that the client, representation of a In his leading, deceptive the wooden verti- shall not: damaged, warped, and not cal blinds were (2) Knowingly or defense advance a claim quality. good and workmanlike law, except existing under that is unwarranted that he defense if it such claim or advance good argument supported by for faith can be jury: Question 6 asked the extension, modification, exist- or reversal of Respondent, Did ing law. client, representation of her Supreme Re- of Professional Code 7-102(A)(2) sponsibility, DR Turley, knowingly lawsuit? file Court, upon based ... existing verdict that is unwarranted under law” thereto, applicable supported by and whether the claim “can and the law is of the extension, good argument opinion for an mod- and so finds that the acts and ification, existing reversal law.” Bames part conduct on Respondent, as contends that the State Bar did not ask the found answer to trial court to submit (2) the essential and con- separate Nos. 6 and constitute two 7-102(A)(2) trolling elements of DR to the 7-102(A)(2) violations of Therefore, recovery it waived under Responsibility. the Code Professional 7-102(A)(2). DR misconduct, As to each such act of appropriate discipline Court finds that the We must first consider whether suspension practice from the of law for a properly preserved complaints Bames (1) (6) period year of one with the last six appellate argues review. The State Bar suspension probated, months of such to be objection Special Question that Barnes’s (1) year periods suspen- said two one language Nos. 6 and 18 recited from 7- concurrently. sion to run 102(A)(1),7 7-102(A)(2), not DR and that her specific was “neither nor does judgment further that Barnes give explanation objection.”8 to the psychological counseling seek obtain that, The State Bar contends in order to supervised that she be and counseled *5 error, preserve Barnes was to dis lawyer good standing during in the term of tinctly point out the matter to which she was probation. objecting explain ground and to the or reason erroneous, why Bames’ citing Points Error the matter was Castle of Branscum, berry v. 721 276-77 S.W.2d By her first of Bames com- (Tex.1986). plains Special that the answers to Questions judg- 6 and 18 do not the deciding party whether a has ment her under 7- preserved jury charge, error we need 102(A)(2). Bames contends that she was only party determine whether the made the entitled to have the determine whether complaint, timely trial court of aware 7-102(A)(2) knowingly she violated DR plainly, ruling. Dept. when and obtained a State of i.e., suits; filed Highways Payne, she and Lemons v. 241 (Tex.1992); Holt, “knowingly advance[d] whether she a claim 714 Morris S.W.2d suit, Representing knowingly position, 7. DR a 7-102. Client Within the filed a asserted a con- defense, trial, delayed Bounds of the Law ducted a a or took other action on of behalf her client when she knew client, representation In his of a a or it was obvious that such action would serve shall not: merely maliciously injure to harass or anoth- position, File a assert a conduct a er?” That is a broad submission and tracks defense, trial, delay a or take other action on specifically particular question. that D.R. in behalf of his client when he knows or when it so, four, objections apply And those five merely is obvious that such action would serve and six. maliciously injure to harass or another. Oh, okay. objection Court: Your is overruled. Supreme Court Code Re- n n n : n n of Professional ‡ 7-102(A)(l) (1984). sponsibility, 16, 17, Again, Counsel: No. 16. No. issues, there is no evidence for of those conference, During charge Barnes's coun- tracking and it be should submitted— following objections sel made the D.R.S, cover, particular they D.R. that that Question Nos. 6 and 18: conglomerate should be submitted in a form. 4, 5, Counsel: Nos. and 6 are im- broadly It should read, and that should be submitted stated, properly improperly separated or you preponderance “Do find from the lawsuit, my should be consolidated as number six— Caro- the evidence in the Lemons may approach, I Your lyn knowingly Honor? a Machalec Bames defense, you give position, Court: Make Yes. sure those back to asserted a conducted a de- trial, part layed me to it make record. a or took other action on behalf of six, says, Counsel: I will. As number “Do her client when she knew or when it was you preponderance merely find from of the evi- obvious that such action would serve lawsuit, Carolyn maliciously injure dence that in the Ma- harass or another.” knowingly chalec Bames filed a lawsuit— The trial court overruled this as well.

107 (Tex.1986). 4)knowing claim or defense could permits 279 a that the TexR.Civ.P. preserve by good-faith argu- not a position supported Barnes’ error extension, modification, ment for or regarding the trial court’s failure to submit existing law. timely, specific objec reversal of by making an issue a byor requesting tion submission the issue Thus, the in this case were whether issues substantially Payne, correct form. the Tur- Carolyn Machalec Barnes advanced Morris, 239-241; at S.W.2d at S.W.2d they ley knowing that and Lemons suits existing law whether unwarranted under knowing advanced lawsuits requested that the trial court in- she these by good-faith they supported following questions charge: clude the were not extension, modification, argument for an you preponderance Do find from the of the existing law. reversal THE evidence that TURLEY LAW- SUIT, Carolyn knowing- argues that Bar the latter ly a claim or is advanced defense that 7-102(A)(2) are two elements under DR mat law, existing except unwarranted under judge of law to ters be decided advance such claim or de- she questions of fact. by good fense supported if it can be claim or defense disagree. Whether the extension, modification, argument for an question existing law is unwarranted under existing reversal of law? law, as is the claim could be whether [Instructions omitted] argument supported good-faith you preponderance Do find from existing law. modification or reversal in THE evidence LEMONS LAW- However, expressly rule also disciplinary SUIT, knowing- part on the requires culpable mental state ly claim or advanced a defense that 1) knowledge actor: that the claim is *6 existing law, except unwarranted under 2) existing law and unwarranted under that she advance such claim or de- knowledge argument good a faith for a by supported good fense if it can be faith modification or of the law cannot reversal extension, argument modification, an or knowledge ques of actor is a made. The existing reversal of law? Inquiries of fact. into the mind to tion ascer knowledge [Instructions omitted] mental intent or are tain states of jury. uniquely within realm of the The trial court refused to Barnes’ include questions charge jury. in the to the Even 7-102(A)(2), discipline To merit under DR objections Barnes’ during charge confer- Bar to obtain an insufficient, ence were as the State Bar con- finding by affirmative on each ele- 1) tends, preserved by asking Barnes error although of its It faded to do so ment claim. 7—102(A)(2) trial court to submit the DR deficiency by appellant pointed out 2) special questions to the ob- by questions. both and tendered taining ruling Payne, a from the trial court. any accompanying in These elements and 838 S.W.2d at 239. or were not submitted structions definitions jury, finding on these to the and a elements appel turn to the merits now cannot be in the Bar’s favor deemed State point lant’s of error. We first believe objected the omission “knowingly,” used in the term DR 7- questions requesting appropriate special on 102(A)(2), applies to all of conduct ex 279; Payne, 838 these issues. Tex.R.Civ.P. Thus, pressed necessary therein. ele Morris, 239; at at 714 S.W.2d 312- S.W.2d ments of of action under DR 7- a cause sup does not 13. We hold that the verdict 102(A)(2) are: judgment against Barnes on these port a 1) client, representing In a grounds. 2) attorney knowingly an a claim advanced defense, record, reviewing the entire 3) also hold that the fails conclusive knowing that the claim or defense was evidence law, establish, law, that Barnes existing ly as a matter of under

unwarranted 108 Cain, 176; unjust. ly Hickey, suits 709 at

advanced Lemons know- S.W.2d clearly ing they unwarranted un- 797 at 110. S.W.2d existing knowing good- a der law and provides: Disciplinary Rule 5-103 argument did not exist to acquire proprie- A a shall extension, modification, or reversal of exist- tary of action or interest the cause ing appellant’s point first law. We sustain subject litigation matter of he is con- error. client, may: ducting except that he Acquire granted a lien law to State Bar’s Cross Points Error expenses. secure his fee or By its first cross (2) Contract with a client for a reason- argues proved State Bar that the evidence contingent able fee a civil case. law, conclusively, as a matter of that Barnes Supreme Code of Profes- proprietary had a interest in the Responsibility, DR 5-103 sional Special Ques and that the answer to The trial court did not submit a definition wrong. No. tion 39 was. “proprietary interest” to the proof a with the burden of When Baker,10 Appeals the Austin Court of complains appeal on from an adverse stated: points finding, appropriate of error are preventive 5-103 a “that a the matter was established as matter showing require rule which does not jury’s finding of law” or “that the Instead, prohib- actual harm to a client. great weight preponderance attorneys acquiring proprietary from its Croucher, evidence.” Croucher v. 660 subject litigation interests in the matter of (Tex.1983). S.W.2d possibility in order to avoid the of adverse upon attorney influence and harm to legal sufficiency When we review the client. “that the matter was established as a matter point, of law” we examine the record for Baker, According at 373. to the S.W.2d finding supporting evidence of fact and American Bar Association’s Commission ignore contrary. all evidence to the Sterner Professional Ethics: Co., v. Marathon Oil 767 S.W.2d Acquisition by lawyer proprietary (Tex.1989); Couchman, Hickey v. *7 interest in a cause of action he is [or she] 103, 1990, (Tex.App. Corpus 109 Christi — conducting expressly prohib- for a is client denied). If find that no writ we evidence 5-103(A), if an attor- ited DR supports finding, must determine ney acquires an interest the outcome of contrary propo from the record whether the fees, it can lead to a suit addition to his as a matter of law. Ster sition established recovery attorney placing his own ner, 690; Hickey, at 797 S.W.2d example, might he ahead of his client. For at 109. urge would be to his a settlement which not to the best interest of best interest but sufficiency a factual When we review the client. jury’s finding against or “that the Comm, Ethics, ABA on Professional Formal great weight preponderance and of the evi (1967). Op. 288 point, entire record. dence” we examine the Bain, 175, 176(Tex.1986); According Geoffrey Haz- 709 to commentators Cain S.W.2d 5-103(A) Hodes, prohib- Hickey, 797 at 110. set aside the ard and William S.W.2d We contrary champerty, except security its interest only verdict if it is so to the over weight preponderance payment to of the whelming of the allowed law secure interest in the clearly wrong lawyer’s as to be and manifest fee or a contractual evidence question. jury: to this asked the The answered “No” No. 3 Respondent, Carolyn Did the (Tex.Civ.App. proprietary in the Tur- 10. 539 S.W.2d 367 have a interest — Austin n.r.e.). ley writ ref'd lawsuit?

109 law, and the client s consent quires full disclosure contingent At common of a fee. form judgment con- attorney’s professional “investing” per- in a champerty consisted employ- subject matter of the cerning the by buying a certain cause of action son’s reasonably be or relationship “will recovery; in ef- ment hoped-for of the percentage business, financial, by his own fect, action. affected person’s cause of discounting the Geoffrey DR 5- interests.” personal Hodes, property, The Hazard & William Silverman, Lawyering: N.J. 101(A); A Matter The On Handbook Law Of court of 1240-41 One A.2d Professional Conduct Rules Of Model 5-101(A) (2nd “full dis- 1.8:601-602, Supp. ed. Rule appeals §§ 1.8:1000-1101 has defined 1992). follows: closure” as expla- a clear includes “Full disclosure” found differing involved proprietary interest interests not have a nation Barnes did advantages reviewing and the all the transaction lawsuit. legal advice. It also evidence, seeking independent we conclude that indepen- explanation of the risks separate requires a detailed consisted of two 1) ie., lawsuits; disadvantages the client entailed Turley’s suit to Toni dent Knaupp including liabilities Lynn agreement, against Robert 2) may foreseeably accrue the same Carolyn Barnes’s suit that will Turley could Barnes and Toni him.... defendants. separately or and tried their suits have filed James, 452 A.2d Matter jointly

jointly. By filing her suit 5-101(A) (D.C.Cir.1982). re that DR believe We buy a certain Turley’s Barnes did Thus, it determination. quires a factual recovery in hoped-for percentage of Toni’s must be made suit. all of the evidence. have reviewed We legally and hold that the evidence is trial, during the reveals that record jury’s factually find- sufficient as follows: examined Barnes Bar’s counsel Bar’s first cross ing. We overrule Turley, told Toni after Counsel: You point of error. taken, you go- deposition was By point of er its second cross expenses get your ing to sue to vacation ror, contends that the evidence the State Bar back, you? didn’t law, conclusively, as a matter of proves I not recall that at ail. Barnes: do Carolyn Machalec Barnes did not obtain Toni permission didn’t ask her You Counsel: Turley’s consent after full disclosure before lawsuit, you? you did before filing and the answer Yes, wrong. in the details— Special Question 7a11 was Barnes: we discussed fact, one that she was the as a matter 5-101(A) provides as fol- it begin with because brought up lows: *8 increasing attorney’s fees and her of his client Except with the consent right— she was disclosure, full shall not after objected then Bar’s counsel The State accept employment if the exercise of The trial court overruled Barnes’s answer. judgment professional on behalf his her Barnes continued with reasonably his client will be or testimony. financial, business, affected his own property, personal interests. says, “Isn’t the one that Barnes: She was Supreme told can anything we do? We’ve there Profes- Code of have this. We don’t I can’t afford Responsibility, 5-101(A) them sional in- money,” because it was —it of the propriety on the DR5-101(A) focuses attorney’s fees. That was itself, creasing her relationship and re- attorney-client consent of her fail to obtain the jury: chalec 7a asked the full disclosure? client after Turley filing lawsuit on behalf of Prior to question. to this Respondent, Carolyn answered "No” Turley, Ma- The did the Toni purpose Lynn whole of what explained 2. Whether Barnes had to Tur- [Knaupp] doing. ley That firm suing does —if in her name Barnes they your know client doesn’t have mon- would make herself a witness ey, they you— case; will coerce objected explained The State Bar’s Whether Barnes had to Tur- counsel to this testi- mony ley by filing non-responsive. on the basis that it was a lawsuit in her Turley’s name and objection, [Barnes’] The trial court sustained name that but creating potential Barnes was testimony. did not strike the con- The State Turley flict Bar’s counsel then of interest between continued with her exami- Turley’s attorney; nation. 4. Whether Barnes had discussed with Turley concept of conflict of inter- Counsel: You never discussed with Toni est; Turley, prior filing the lawsuit 5. Whether understood there was Lynn Knaupp, by filing the fact that anything suing that Barnes was you making yourself lawsuit a wit- Turley’s behalf in a lawsuit case, you? ness didn’t party against Turley’s Barnes was the Barnes: I was not —we did not discuss Lynn Knaupp. ex-husband and I making myself and was not witness the case. ques- answered “No” to all of these tions. n n ‡ n n n jury may any The believe or disbelieve You Counsel: never discussed with Toni Hipp testimony all witness. you the notion that would create Serv., Inc., J.D. Lowrie Well a conflict of interest between her and (Tex.App. Corpus Christi de writ — you by filing you a lawsuit where were a nied). presented The in this case was her, you? with did conflicting evidence. The recon Barnes: There was never a conflict of ciled the conflict and found that after interest. disclosure, Turley’s full obtained Toni con objected Trial counsel to Barnes’ answer on filing sent before suit. non-responsive. the basis that it was applying the same standard of re- reporter question, court read back the previously applied view that we to the State question. Barnes answered “no” to the error, first point Bar’s cross hold State Bar’s counsel then continued her exam- legally factually the evidence is sufficient

ination. jury’s finding. We overrule fact, you Counsel: never even discussed Bar’s second cross of error. concept of conflict of interest with disposition appellant’s to our Due first her, you? did point of we need not address her Barnes: I don’t if remember we ever dis- Tex.R.App.P. remaining points of error. cussed that or not. 90(a). trial, During the the State Bar’s counsel judgment We REVERSE the trial court’s asked she and Barnes had a judgment appel- and RENDER in favor of regarding discussion Barnes’s vacation. Tur- lant. ley yes. Turley answered testified that “She going pursue [Barnes] was some kind of *9 expenses

reimbursement for because she had OPINION ON MOTION early to come back from her —because her FOR REHEARING disrupted, guess vacation was and I had she original opinion We issued our in this case arrangements to make extra to come back.” 13,1994. on October Bar of Texas Turley: The State Bar also asked Toni subsequently rehearing. filed a motion for Turley’s By 1.Whether Barnes had asked point its sixth the State Bar permission expenses; rehearing to sue for those in its motion for contends this

HI Tex.R.Disgiplinaey P. by citing erred court original publication of the support

6.06 opinion. Bar. TexR.Dis- agree

We cited P. 6.06 should not have been ciplinaRY publication this court pend- this case was original opinion because Texas Rules of ing at the time implemented. Procedure were Tex.R.App.P. 90, however, authorizes us opinions warrant we believe determine Bar’s mo- publication. grant the State only rehearing to this tion for opinion published pursuant original order Tex.R.App.P. 90. respects, deny the State In all other rehearing and confirm Bar’s motion opinion we issued October INC., SHEARSON, BARNEY Suc SMITH Brothers, Lehman cessor Shearson Haines, Kieval, Inc., Arthur An Debbie Standridge, Appel Shea, and David drew lants FINSTAD, Appellee.

Harold No. 01-94-00575-CV. Appeals of Court of (1st Dist.). Houston 13, 1994. Oct. Rehearing Overruling Motion for Order Nov.