In the Matter of Rolando CABALLERO.
No. 07-0484.
Supreme Court of Texas.
Decided Dec. 19, 2008.
272 S.W.3d 595
Argued April 2, 2008.
Finally, Reyes argues that there was evidence younger employees who committed sexual harassment remained eligible for rehire after termination, while he did not. Under AutoZone‘s termination procedures, a store manager completes a payroll termination report that includes a question as to whether the employee is eligible for rehire. Three such termination reports indicated that employees younger than Reyes who had been terminated for sexual harassment remained eligible to be rehired while Reyes did not. Reyes argues that the reports show a trend of disparate discipline based upon age. We disagree.
Between 1999 and 2001, AutoZone terminated twenty-three employees for sexual harassment; seventeen were under the age of forty. Evidence that the termination reports of three of the seventeen employees indicated they were eligible for rehire was not probative evidence that AutoZone treated younger employees who committed sexual harassment differently than Reyes was treated. First, fourteen of the seventeen were not eligible for rehire. Second, the reports were not completed by the same official or in the same office as Reyes‘s termination report. Two were completed by store managers in Ohio and one by a store manager in New Mexico. See Monarrez, 177 S.W.3d at 917 (noting that the circumstances must be “comparable in all material respects, including similar standards, supervisors, and conduct“). Third, Munoz explained at trial that the termination reports are prepared for payroll purposes only and are many times completed by managers who have no knowledge of the reason for termination. As to the three employees Reyes claims were eligible for rehire, there was no evidence about the position or level of knowledge of the persons who completed the reports. Finally, AutoZone supervisors testified without contradiction that it is AutoZone‘s policy not to rehire any employee who has been terminated for sexual harassment, and there was no evidence that AutoZone has ever done so, regardless of whether the termination reports reflected eligibility for rehire. In sum, Reyes presented no evidence under which a reasonable jury could find that AutoZone treated him less favorably than any other employee who had violated its sexual harassment policy.
We conclude that the evidence is legally insufficient to support the jury finding that age was a motivating factor in any action AutoZone took as to Reyes. We sustain AutoZone‘s first issue. Sustaining AutoZone‘s issue challenging the legal sufficiency of the evidence requires us to reverse and render judgment for AutoZone, so we do not address AutoZone‘s remaining issues. Without hearing oral argument, we reverse the court of appeals’ judgment and render judgment that Reyes take nothing. See
Justice GREEN delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice O‘NEILL, Justice WAINWRIGHT, Justice BRISTER, and Justice JOHNSON joined.
The issue in this case is straightforward: under the compulsory discipline process set forth in the Texas Rules of Disciplinary Procedure, when an attorney‘s sentence has been fully probated, does the Board of Disciplinary Appeals (BODA) have discretion to disbar that attorney, or may it only suspend him for the length of the probation term? We hold that the rules give BODA discretion to disbar the attorney, and, therefore, affirm BODA‘s judgment of disbarment.
I
In 2004, Rolando Caballero was indicted in federal district court for wire fraud and mail fraud. After a plea agreement, he pled guilty to the mail fraud charge. The trial court placed him on supervised probation for five years and ordered him to pay restitution of $57,937.50 plus a mandatory special assessment of $100.00. The prosecutor did not pursue the wire fraud charges further. The Chief Disciplinary Counsel of the Commission for Lawyer Discipline brought a compulsory disciplinary action against Caballero. Following a hearing on March 23, 2007, BODA entered a judgment disbarring Caballero. Caballero moved for a new trial but his motion was denied. Caballero then appealed to this Court. See
II
The attorney disciplinary process is divided into two types of proceedings: the standard grievance procedure and the compulsory discipline procedure. See In re Lock, 54 S.W.3d 305, 306 (Tex. 2001). The standard grievance procedure applies in all instances of alleged attorney misconduct, except where an attorney is alleged to have committed an “intentional crime.” Id. Under the standard grievance procedure, a grievance committee or district court determines violations and sanctions. See
The compulsory discipline procedure applies “[w]hen an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on probation for an Intentional Crime.”
In this case, the compulsory discipline procedure applies because it is undisputed that Caballero‘s crime is an intentional crime. The issue, then, is to what extent Texas Rules of Disciplinary Procedure 8.05 and 8.06 give BODA discretion to determine Caballero‘s discipline, given that his sentence was fully probated.3 Rule 8.05, entitled “Disbarment,” states in relevant part:
When an attorney has been convicted of an Intentional Crime, and that conviction has become final, or the attorney has accepted probation with or without an adjudication of guilt for an Intentional Crime, the attorney shall be disbarred unless the Board of Disciplinary Appeals, under Rule 8.06, suspends his or her license to practice law.
If an attorney‘s sentence upon conviction of a Serious Crime is fully probated, or if an attorney receives probation through deferred adjudication in connection with a Serious Crime, the attorney‘s license to practice law shall be suspended during the term of probation. If an attorney is suspended during the term of probation, the suspension shall be conditioned upon the attorney‘s satisfactorily completing the terms of probation. If the probation is revoked, the attorney shall be disbarred.
III
In resolving the meaning of these rules, we apply statutory construction principles. See O‘Quinn v. State Bar of Tex., 763 S.W.2d 397, 399 (Tex.1988) (instructing that “our disciplinary rules should be treated like statutes“). Statutory construction is a legal question, which we review de novo. State ex rel. State Dep‘t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). In doing this, we “give effect to all [a statute‘s] words and, if possible, do not treat any statutory language as mere surplusage.” State v. Shumake, 199 S.W.3d 279, 287 (Tex.2006).
Rule 8.05 states that an attorney convicted of an intentional crime, or an attorney put on probation for an intentional crime, “shall be disbarred unless [BODA], under Rule 8.06, suspends his or her license to practice law.”
The prior disciplinary rules also gave BODA this discretion, albeit in a different manner.7 The prior disbarment rule man-
Our construction here is also consistent with other portions of the rules. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001) (instructing that “we must always consider the statute as a whole rather than its isolated provisions” and “[we] should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone“). Rule 11.01, which addresses when an individual can apply for reinstatement after disbarment, describes an attorney who has been “disbarred or resigned in lieu of discipline by reason of conviction of or having been placed on probation with-out an adjudication of guilt for an Intentional Crime or a Serious Crime.”
Caballero relies on five cases to argue that BODA has no discretion to disbar him. See Lock, 54 S.W.3d 305; In re Birdwell, 20 S.W.3d 685 (Tex.2000); In re Humphreys, 880 S.W.2d 402 (Tex.1994); Sanchez v. Bd. of Disciplinary Appeals, 877 S.W.2d 751 (Tex.1994) (per curiam);
Thus, both the language of the disciplinary rules and our case law confirm that BODA has discretion to disbar or suspend in the case of a fully-probated sentence. If BODA decides to suspend an attorney‘s license, the suspension period must equal the length of the probation period. Id.
IV
Caballero was convicted of an intentional crime and received a fully-probated sentence. BODA, therefore, had discretion to either disbar Caballero or suspend his license for the term of the probation. Further, although not briefed in this case, we find nothing in the record to indicate an abuse of discretion on BODA‘s part in disbarring Caballero. See In re Filippov, BODA Case No. 30611, at 11-12 (describing factors BODA considers when determining whether to disbar an attorney or suspend his license when the attorney‘s sentence is fully probated). Because we hold that BODA had discretion to disbar Caballero, and that it did not abuse that discretion, we affirm the judgment of disbarment.
Justice WILLETT filed a dissenting opinion, in which Justice MEDINA joined.
Like the Court, I would attempt to harmonize Rules 8.05 and 8.06 of the Rules of Disciplinary Procedure and give meaning to each.1 However, the Court sees discretion where I see only mandatory options for discipline. Because I believe the Court‘s attempt to harmonize the relevant rules and rulings strikes a discordant note, I respectfully dissent.
The parties do not dispute that the compulsory discipline rules apply. Rule 8.05, titled “Disbarment,” provides that the Board of Disciplinary Appeals (BODA) “shall” disbar an attorney who is convicted of, or has accepted probation for, an Intentional Crime. The use of “shall” makes the Rule mandatory and “imposes a duty.”2
The only exception mentioned in Rule 8.05 is Rule 8.06, titled “Suspension.” Rule 8.06 states that the attorney “shall be disbarred unless” BODA, “under Rule 8.06, suspends his or her license to practice law.” As we observed in Sanchez v. Board of Disciplinary Appeals, “Rule 8.05 mandates disbarment for a final conviction ... except when Rule 8.06 applies.”3 Rule 8.06 sets out the exception by providing that if the attorney‘s sentence is ”fully probated” (emphasis added), BODA shall suspend the attorney “during the term of probation.”4 We have so observed: BODA “is required to disbar an attorney” under Rule 8.05 “who is convicted of an intentional crime and whose sentence is not fully probated.”5 Like Rule 8.05, Rule 8.06 is mandatory by its terms.
I would reconcile the rules, and honor the mandatory “shall” used in both, by holding that when mandatory discipline is warranted, Rule 8.06 applies if the sentence is fully probated, and Rule 8.05 applies if the attorney‘s sentence is less-than-fully probated. Which is to say, BODA must disbar under Rule 8.05 if the attorney is sentenced to jail or to a combination of jail and probation, and BODA must suspend under Rule 8.06 (up to the length of the probated sentence) if the sentence is fully probated. Because Caballero‘s sentence was fully probated, I would hold that BODA was only authorized to suspend his license.
The plain language of the rules supports this result, and so does our prior precedent. In Sanchez, the Court held that Rule 8.05 mandates disbarment “except when Rule 8.06 applies,” and it did “not apply to Sanchez because his sentence, a fine of $500, was not probated.”6 Later that same year, in In re Ament, we noted that the relevant disciplinary rules previously gave discretion to disbar an attorney who received a fully probated sentence, but under Rule 8.06, “[t]he provision pro-
Seven years after Sanchez, we observed in In re Lock that the mandatory language of the two rules should be applied according to the nature of the sentence without regards for details that would ordinarily inform a discretionary review: “An attorney guilty of an intentional crime must be either suspended or disbarred—depending solely on whether the attorney‘s criminal sentence was probated—without regard for any collateral matters, and without any consideration or inquiry into the facts of the underlying criminal case.”9
In that case we seemed to reject the view that BODA has discretion to either disbar or suspend a lawyer regardless of whether the sentence was fully probated. The Court today would allow language in Rule 8.05 concerning disbarment to confer discretion over suspension when the rule actually governing suspension leaves no room for such discretion. The more natural reading is that Rule 8.05 requires disbarment “unless” Rule 8.06 applies, at which point suspension is required. This construction comports with our analysis in Sanchez, Ament, and Lock and harmonizes the plain language of both rules.10
I understand the Court‘s desire to grant BODA flexibility, but my reading of the rules and our pertinent precedent compels me to respectfully dissent.
UNITED STATES FIDELITY AND GUARANTY COMPANY, Petitioner, v. Louis GOUDEAU, Respondent.
No. 06-0987.
Supreme Court of Texas.
Decided Dec. 19, 2008.
Argued Dec. 6, 2007.