In re NOLO PRESS/FOLK LAW, INC., Relator.
No. 98-0724.
Supreme Court of Texas.
Argued Oct. 21, 1998. Decided April 15, 1999.
991 S.W.2d 768
In this original proceeding, Nolo Press, Inc., a publisher of self-help legal books and computer software, petitions for a writ of mandamus compelling the Unauthorized Practice of Law Committee to produce documents and information related to the Committee‘s operations in general, and in particular, to its current investigation into whether certain of Nolo Press‘s publications constitute the unauthorized practice of law in Texas. Alternatively, Nolo Press requests clarification or modification of this Court‘s September 16, 1986 Order1 that limits disclosure of Committee records. We hold that the Court lacks jurisdiction to grant the requested relief by mandamus, and that Nolo Press‘s petition should be treated in part as an administrative rather than a judicial matter. By administrative order issued today,2 we vacate the Court‘s 1986 Order to permit disclosure of Committee records as providеd by newly adopted Rule 12 of the Rules of Judicial Administration.3
I
We begin by describing the Unauthorized Practice Committee and then summarizing the events which have given rise to this proceeding.
R. James George, Peter D. Kennedy, Austin, for Relator.
James Donald Blume, Bretton C. Gerard, Dallas, Wesley V. Geary, Plano, J. Rodney Gilstrap, Marshall, Larry W. Lay, Austin, Clint W. Lewis, Beaumont, James N. Rader, Steven W. Young, Linda A. Acevedo, Austin, for Respondent.
A
The Supreme Court of Texas has inherent power to regulate the practice of law in Texas for the benefit and protection of the justice system and the people as a whole.4 The Court‘s inherent power is
The practice of law in Texas is restricted to members of the State Bar, with limited exceptions permitted by this Court.9 The “practice of law” is defined in the State Bar Act as:
the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.10
This statutory definition, however, is by its own terms “not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.”11 From time to time the Legislature has imposed civil and criminal penalties on the unauthorized practice of law.12 Most re-
The entity charged with policing the unauthorized practice of law is the Unauthorized Practice of Law Committee. The first such entity, the Committee on the Lay and Corporate Encroachment of the Practice of Law, was created in 1932 by the voluntary Texas Bar Association and its members appointed by the Association‘s president.14 The Committee‘s sole purpose was to draft and urge enactment of a statute defining the practice of law and prohibiting the unauthorized practice. That goal having been accomplished in the 1933 legislative session,15 the Committee was made a standing committee of the Bar Association with the name, the Committee on Unlawful Practice of the Law.16 The Committee‘s purposes were enlarged to include informing local bar associations about the problems of the unauthorized practice of law, investigating possible violations of the new statute, and enforcing the statute by injunctions and criminal prosecutions.17 Shortly after the integrated State Bar of Texas was formed in 1939,18 this Court promulgated rules governing its operations, which called for local grievance committees to investigate and prosecute the unauthorized practice of law.19 The State Bar also created a state committee on unauthorized practice to assist the local grievance committees, stimulate interest, and disseminate information.20 The state committee was not a standing committee, however, and its role was largely advisory; investigation and prosecution of the unauthorized practice of law was left to local grievance committees.21 Rules amendments adopted by the bar and approved by this Court in 1952 established the Unauthorized Practice of Law Committee as a permanent entity in the State Bar administration and gave the Committee investigative and prosecutorial powers, as well as the responsibility to inform the State Bar and others about the unauthorized practice of law.22 In 1979, the Legislature amended the State Bar Act to require that members of the UPL Committee be appointed by this Court rather than by the president of the State
By Order dated November 17, 1980,24 the Court promulgated rules governing “the Unauthorized Practice of Law Committee for the State Bar of Texas“. The Committee‘s duties are prescribed as follows:
The Committee shall keep the Court and the State Bar informed with respect to the unauthorized practice of law by laypersons and lay agencies and the participation of attorneys therein, and concerning methods for the prevention thereof. The Committee shall seek the elimination of the unauthorized practice by action and methods as may be appropriate for that purpose, including the filing of suits in the name of the Committee.25
The UPL Committee‘s authority to institute legal proceedings to prohibit the unauthorized practice of law is not exclusive. Such proceedings have been prosecuted by grievance committees,36 local bar associations,37 and groups of attorneys.38 Criminal proceedings would ordinarily, of course, be conducted by criminal prosecuting attorneys.
B
In June 1997, the Chair of the Houston UPL Subcommittee wrote Nolo Press the following letter:
The Unauthorized Practice of Law Committee has received information that you may have engaged in activities which constitute the unauthorized practice of law. More specifically, it is our information that you have prepared and distributed to citizens of the State of Texas certain software and a User‘s Guide which represent that your forms as well as the suggested information to be inserted will properly affect legal rights. This software includes “Living Trust Maker-2.0“. Your activities, the representations made, the form of the presentations and other aspects of these programs may constitute the unauthorized practice of law.
The Unauthorized Practice of Law Committee is appointed by the Supreme Court of the State of Texas, and is charged by statute to enforce the State Bar Act. Persons not licensed by the Supreme Court as attorneys at law are prohibited from performing acts that constitute the practice of law.
You are requested to provide the undersigned investigator with a written response to the foregoing description of your activities in connection therewith. You are requested to include in your initial response the names, addresses and states of licensure of any attorneys who contributed to the contents of the software and/or User‘s Guide. Your written response should be received by me within ten (10) days of the date of this letter. Your failure to respond could mean that the Committee will consider the allegations and information before it without benefit of your reply.
You are entitled to be represented in this mattеr by an attorney of your own choosing. We look forward to your response.
The record before us reflects that Nolo Press responded to this letter, although the response is not included in the record.39
The next event evidenced in our record occurred in March 1998, when an investigator for the Dallas UPL Subcommittee wrote Nolo Press that he had been assigned to investigate the complaint initially considered by the Houston Subcommittee, and that the Dallas Subcommittee had scheduled a brief (“normally” thirty to forty-five minutes, according to the letter), informal hearing for August 20, 1998, “to
We request that an appropriate representative of Nolo Press attend that hearing. The failure of Nolo Press to have a representative present at the hearing could mean that the UPLC will consider the allegatiоns and information before it without benefit of the information that such a representative could provide.
In response, Nolo Press requested additional information about the complaint, the investigation, and the hearing process, as well as more general information about the UPL Committee‘s activities and authority, all “[a]s part of deciding whether to appear” at the August hearing. The Dallas Subcommittee refused to provide Nolo Press information on complaints or possible witnesses against Nolo Press on the ground that such information was confidential. However, in answer to Nolo Press‘s other questions, the Subcommittee stated that investigatory hearings were informal and not open to the public, that testimony was not taken under oath, and that Nolo Press would be allowed to present evidence at the hearing subject to the discretion of the Subcommittee Chair. The Subcommittee added:
Neither the UPLC nor its Dallas Subcommittee has the power to ban anything. After the investigative hearing, the choices available to the Dallas Subcommittee are (i) to continue the investigation, or (ii) to close the file on the complaint, or (iii) to recommend to the UPLC that suit be filed to enjoin Nolo Press from engaging in whatever activities the Subcommittee believes constitute the unauthorized practice of law. The UPLC may accept or reject the Subcommittee‘s recommendation. If the Subcommittee recommends that an injunction suit be filed and the UPLC accepts that recommendation and authorizes the filing of such a suit, the suit will be filed in a court of competent jurisdiction.
[Two of your questions] imply that the UPLC or its Dallas Subcommittee has alleged, or has taken the position, that Nolo Press is engaged in the unauthorized practice of law. I hope you realize from some of the answers [provided in the letter] that neither the UPLC nor its Dallas Subcommittee has made any such allegations or taken any such position. We are merely investigating a complaint. We have not reached any conclusions or taken any position with respect to the activities of Nolo Press.
Nolo Press requested and received from the Clerk of this Court copies of the 1980 and 1986 Orders regarding the UPL Committee. Again, Nolo Press asked the Dallas Subcommittee to provide the details of the complaints against it, expressing its concern that an unfavorable decision had already been made and that “this hearing is just window dressing.” The Subcommittee again refused to provide the requested information but explained:
[We are] sorry that you believe Nolo Press is not getting a fair shake and you believe the UPLC has made up its mind. We are interested in what Nolo Press has to say and the UPLC has not made any decision on filing suit to seek an injunction.
For clarification purposes, the process that we will follow is a hearing will be conducted to obtain information on whether any activities of Nolo Press, including the distribution of Living Trustmaker or other products, may constitute thе unauthorized practice of law. After that hearing, the Dallas Subcommittee will then decide whether to dismiss the investigation, seek more information, or recommend to the State Unauthorized Practice of Law Committee that a lawsuit be filed to enjoin Nolo Press from unauthorized practice of law. The State Committee will then take up the matter and decide if suit should be authorized. If suit is not au-
thorized, there is no lawsuit; if suit is authorized, a lawsuit seeking injunctive relief will be brought in a court of competent jurisdiction. If a lawsuit is filed, the court will decide whether Nolo Press has committed unauthorized practice of law and whether injunctive relief is appropriate. Please note the courts, not UPLC determine whether unauthorized practice of law has occurred and the relief, if any, to be afforded. Please be aware that the Texas legislature has defined what constitutes the practice of law. See TEX. GOV‘T CODE ANN. § 81.101 (Vernon 1988).
(Emphasis in original.)
Nolo Press and the Dallas Subcommittee continued to exchange correspondence without resolving their differences. At one point, Nolo Press invoked the Public Information Act40 in its request for information, but the Subcommittee refused the request on the ground that the Act does not apply to the judiciary.41 Instead, the Subcommittee continued to rely on the 1986 Order in refusing to produce the information Nolo Press requested.
Four weeks prior to the scheduled August hearing, Nolo Press petitioned this Court for a writ of mandamus compelling the UPL Committee to produce the following information: the names of its subcommittee members; the dates, times, locations, agendas, and minutes of past and future meetings; copies of the Committee‘s internal rules and procedures; and all internal documents related to the Subcommittee‘s investigation of Nolo Press. Alternatively, Nolo Press requested the Court to “construe, clarify or modify” its 1986 Order to provide that “the UPL Committee is required to disclose to the public upon request the requested documents and information.” We granted Nolo Press‘s petition and stayed the Subcommittee‘s hearing.42
II
Before we can consider whether Nolo Press is entitled to mandamus relief, we must first determine whether we have jurisdiction to issue such relief. Generally, the district court has exclusive original jurisdiction over mandamus proceedings except when the Constitution or a statute confers original jurisdiction on another tribunal.43 This Court may entertain original mandamus proceedings only when jurisdiction is conferred by the Constitution or by statute.44 Nolo Press asserts three bases for this Court‘s jurisdiction over this proceeding.
First, Nolo Press contends that jurisdiction lies under
Nolo Press next contends that jurisdiction lies under
Finally, Nolo Press contends that jurisdiction lies under
Accordingly, we conclude that we do not have jurisdiction to issue mandamus against the UPL Committeе or any of its members on any basis Nolo Press asserts.
III
As an alternative to mandamus relief, Nolo Press urges that we consider its petition as an administrative matter and grant it essentially the same relief it seeks by mandamus, either by directing the UPL Committee to produce the information and materials Nolo Press has requested or by declaring that our 1986 Order does not preclude such production.
Whether we should treat a petition as an administrative rather than a judicial matter depends on the nature of the request and the availability of a judicial forum. In State Bar of Texas v. Go-mez,51 we concluded that whether Texas attorneys should be compelled to provide free legal services to persons who cannot pay for them was an administrative matter. The plaintiffs in that case could not obtain the relief they sought unless this Court promulgated additional rules governing the State Bar. Promulgation of rules is clearly an administrative matter rather than a judicial one.52 Furthermore, because only this Court could grant plaintiffs rеlief, plaintiffs’ claims in the district court did not present a justiciable controversy, and hence that court had no jurisdiction to entertain them. We explained, however, that not
all remedies bearing upon the regulation of the legal profession would be unacceptable infringements on the inherent powers of the Court. Had this Court actually promulgated rules establishing a pro bono program and had Gomez challenged the constitutionality of such rules, the district court would have jurisdiction to decide, in the first instance, whether such rules met constitutional standards. See O‘Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988) (upholding the trial court‘s decision on a constitutional challenge to the rules of disciplinary conduct promulgated by the Court). In due course, we would review any adverse determination in our adjudicative capacity. See Cameron v. Greenhill, 582 S.W.2d 775, 777 & n. 3 (Tex. 1979) (holding that the Court could both promulgate a rule and determine its constitutionality). The important distinction between such a case and the one at hand is that in the former case, the district court would not be cast in the impermissible role of effectively promulgating policies and regulations governing Texas lawyers. Such a case would be justiciable because the district court would be capable of rendering a judgment that accords the parties complete relief, subject of course to appellate review.
But when, as here, the essence of a complaint is that this Court has failed to establish rules governing some aspect of lawyer conduct, a district court has no authority to assume this Court‘s authority to regulate the legal profession. This prohibition includes the rendition of orders that would, as a practical matter, preempt this Court‘s authority. Because the district court cannot effect a remedy that would resolve this dispute, this case does not present a justiciable controversy.53
In Chenault v. Phillips,54 on the other hand, we held that a challenge to the attorney occupation tax55 was a judicial matter, not an administrative matter, and that plaintiffs had a full remedy available in the district court. Distinguishing the case from Gomez, we explained:
Unlike the plaintiffs in Gomez, Relators do not seek imposition of new regulations on lawyers in Texas, but rather challenge the constitutionality of a statute that affects lawyers. Yet, as we noted in Gomez, constitutional challenges to rules enacted by this Court must be brought in district court and heard by this Court in the exercise of its appellate jurisdiction.... Analogously, Relators must follow the same procedure in challenging the constitutionality of the Attorney Occupation Tax. A litigant may not bring such a claim in the first instance in this Court.56
The attorney occupation tax, like all taxes, was imposed by the Legislature, not this Court. Although the Legislature has re-
Gomez and Chenault illustrate the analysis we employ in determining whether to treat a petition as an administrative rather than a judicial matter. The matter in Gomez was clearly administrative, and plaintiffs could obtain the relief they sought in no forum other than this Court. In Chenault, by contrast, the matter was clearly judicial, and plaintiffs could obtain full relief in the district court and on appeal. Applying this same analysis to Nolo Press‘s request for the UPL Committee‘s records, we must determine whether Nolo Press‘s request should be addressed as an administrative matter, and whether Nolo Press has a judicial forum in which to assert its claims.
Whether the UPL Committee‘s records requested by Nolo Press are confidential is a judicial issue. Nolo Press argues that this Court‘s 1986 Order contravenes the Public Information Act,58 various state constitutional provisions, and the common law. Recently in Commission for Lawyer Discipline v. Benton,59 we considered a constitutional challenge to Rule 3.06(d) of the Texas Disciplinary Rules of Professional Conduct, a rule promulgated by this Court. The district court rejected the challenge, but the court of аppeals sustained it, holding the rule unconstitutional. Nolo Press‘s challenge to this Court‘s 1986 Order is no less justiciable than the challenge in Benton to this Court‘s rule, and the appropriate initial forum for this challenge is the district court.
But Nolo Press not only argues that the UPL Committee‘s records are not confidential; it also argues that those records should not be confidential. That is, Nolo Press argues that even if our 1986 Order shields the UPL Committee‘s records from disclosure, the Order should be changed. This is not a justiciable issue for the district court, since that court cannot modify this Court‘s Order merely because it disagrees with the policies underlying the Order. The policy issue Nolo Press raises is purely an administrative matter which only this Court can address. Indeed, we have already done so in a broader context, while this proceeding has been pending, by promulgating Rule 12 of the Rules of Judicial Administration, governing the confidentiality of all judicial records, including the records of judicial agencies like the UPL Committee.60 Rule 12 took effect April 1, 1999.61
Thus, Nolo Press‘s petition raises both justiciable and administrative issues. We could defer сonsideration of the administrative issues while Nolo Press asserted its challenges to our 1986 Order in the district court and under the procedures provided by Rule 12. Even when all those proceedings had run their course, however, the policy issues Nolo Press raises might remain unresolved. Because of our recent promulgation of Rule 12, and its change in the confidentiality of judicial records in general, we believe that the better course is to address those arguments of Nolo Press‘s that can be treated as an administrative matter concomitantly with this proceeding. Our administrative order issues with this opinion.
Justice ENOCH filed a concurring opinion.
Justice ABBOTT did not participate in the decision.
APPENDIX I
IN THE SUPREME COURT OF THE STATE OF TEXAS
Order of the Court Approving Rules For The Unauthorized Practice of Law Committee
WHEREAS, the Unauthorized Practice of Law Committee is appointed by the Supreme Court of Texas; and,
WHEREAS, the Committee currently has no operating rules; and,
WHEREAS, a motion has been presented by the Chairman of the Unauthorized Practice of Law Committee, proposing alternative sets of rules; and,
WHEREAS, the Supreme Court of Texas has considered and approved the rules presented in alternative one,
IT IS, THEREFORE, ORDERED that the rules identified as “Exhibit A” and attached hereto and incorporated by reference be adopted.
By the court, en banc, in chambers, this 17th day of November, 1980.
s/ Joe R. Greenhill, Chief Justice
Zollie Steakley, Justice
Jack Pope, Justice
Sears McGee, Justice
James G. Denton, Justice
Charles W. Barrow, Justice
Robert M. Campbell, Justice
Franklin S. Spears, Justice
Will Garwood, Justice
[EXHIBIT A]
ARTICLE ___—UNAUTHORIZED PRACTICE OF LAW COMMITTEE
RULE NO. ___
The Supreme Court of Texas, pursuant to
SECTION 1. Appointment of Committee
The Unauthorized Practice of Law Committee for the State Bar of Texas (hereinafter the “Committee“) shall consist of nine (9) members appointed by the Supreme Court, three (3) of which members shall be nonlawyers. Members of the Committee shall serve for a term of three (3) years, except that the Supreme Court in making the first appointments to the Committee shall appoint three (3) members to serve an initial term of one (1) year, three (3) members to serve an initial term of two (2) years, and three (3) members to serve an initial term of three (3) years. All members of the Committee shall be eligible for reappointment. A chairperson of the Committee shall be designated each year by the Supreme Court.
SECTION 2. Duties of Committee
The Committee shall keep the Court and the State Bar informed with respect to the unauthorized practice of law by laypersons and lay agencies and the participation of attorneys therein, and concerning methods for the prevention thereof. The Committee shall seek the elimination of the unauthorized practice by action and methods as may be appropriate for that purpose, including the filing of suits in the name of the Committee.
SECTION 3. Rules and Procedures
The Committee, in carrying out its duties, shall establish from time to time rules and procedures gоverning the activities of the Committee, which rules and procedures shall be approved by vote of two-thirds of the members of the Committee. Such rules and procedures shall include provision for the following:
a. investigation as deemed appropriate by the Committee or its delegees of complaints involving the possible unauthorized practice of law;
b. at a reasonable time prior to a decision by the Committee to commence litigation and/or other enforcement activity, notice to the subject of the complaint of the nature of the complaint and an opportunity for the subject of the complaint to respond to the complaint, unless providing such notice and/or such opportunity to respond in a particular case is determined by a majority of the Committee‘s quorum to prejudice unduly the Committee‘s enforcement activity and the public‘s interests;
c. determination by the Committee of the advisability of litigation and/or othеr enforcement activity in the name of the Committee necessary or appropriate for the elimination or prevention of the unauthorized practice of law;
d. recusal of individual Committee members and delegees in circumstances in which it would be improper or appear to be improper for the individual(s) to participate in a case before the Committee;
e. convening of regular meetings of the Committee, and the calling of special meetings and/or special mail ballotings;
f. establishment of a quorum as being a majority of the Committee, or in the case of a special mail balloting as being the casting of voted ballots by a majority of the Committee.
SECTION 4. Delegation of Powers
The Committee, acting through its Chairperson, may appoint subcommittees of one or more members of the State Bar of Texas and/or of other persons to carry out the Committee‘s duties of investigation. The Committee may also appoint counsel to act on its behalf in litigation and/or other enforcement activity. The Committee may not delegate its duty of making the final decision concerning against whom litigation and/or other enforcement activity shall be brought.
SECTION 5. Subpoena Power
The Committee or any member of the Committee authorized to act on behalf of the Committee shall have the power to subpoena witnesses and tangible evidence before the Committee or its subcommittees or delegees. If any witness, after such subpoena has been served, fails or refuses to appear before the Committee or its delegees, or to produce tangible evidence described in the subpoena, or refuses to be sworn or to testify, such witness may be compelled by a judge of any district court to appear, to testify and to produce such evidence.
SECTION 6. Bonds
The Committee shall not be required to post any bond upon the granting of a temporary restraining order, temporary injunction, or permanent injunction pursuant to any litigation filed by the Committee.
SECTION 7. Advisory Opinions
The Committee shall not issue advisory opinions concerning the unauthorized practice of law.
SECTION 8. Oath of Office
Each member of the Committee and each person acting as a delegee of the Committee shall take the following oath before the present chairperson of the Committee or the chairperson of the Committee for the immediately prior year, or any other person authorized by law to administer oaths:
I, __________, do solemnly swear (or affirm) that I will faithfully execute the duties of the office of a member (or delegee) of the Unauthorized Practice of
SECTION 9. Replacement of Members
In the event of death, disability, resignation or misconduct (including failure to participate in the Committee‘s activities) of a member of the Committee, the Supreme Court of Texas shall have the power to replace such member and to appoint a new member of the Committee to fulfill the term of office of the member so replaced.
SECTION 10. Immunity
The Committee, any member thereof, and any delegee thereof shall be immune from any suit for any conduct in the course of their official duties. Complainants and witnesses shall enjoy the same immunity in proceedings before the Committee as is accorded to complainants and witnesses in judicial proceedings.
SECTION 11. Expenses
The necessary and actual expenses of the Committee and its subcommittees or delegees shall be provided for and paid out of the budget of the State Bar of Texas.
APPENDIX II
IN THE SUPREME COURT OF THE STATE OF TEXAS
Supplemental Order to the November 17, 1980 Order Adopting Rules for the Unauthorized Practice of Law Committee
WHEREAS, the Unauthorized Practice of Law Committee is appointed by the Supreme Court of Texas; and,
WHEREAS, the Committee currently operates pursuant to rules considered and approved and ordered adopted by the Supreme Court, in banc, in chambers of November 17, 1980; and
WHEREAS, The Committee in its work discharges its obligations on behalf of the Supreme Court;
IT IS, THEREFORE, ORDERED that the rule adopted as “Exhibit A” and attached hereto and incorporated by reference be adopted by the Court, in banc, in chambers, this 16th day of September, 1986.
John L. Hill, Chief Justice
Sears McGee, Justice
Robert M. Campbell, Justice
Franklin S. Spears, Justice
C.L. Ray, Justice
James P. Wallace, Justice
Ted Z. Robertson, Justice
William W. Kilgarlin, Justice
EXHIBIT “A”
UNAUTHORIZED PRACTICE OF LAW COMMITTEE
Rule No. __________
Section 12.
Said Committee shall keep all records, documents and other information of the Unauthorized Practice of Law Committee and its subcommittees (hereinafter referred to collectively as the “Committee“) that are in its possession for the purposes of discharging its obligations in behalf of the Supreme Court confidential and shall release same only:
(1) For the Committee‘s use in enforcement proceedings to eliminate the unauthorized practice of law;
(2) To satisfy all other requirements of the Committee pursuant to
(3) In response to proper requests of or to assist law enforcement agencies and prosecutors in the detection, investigation and prosecution of crimes; and
(4) In furtherance of any other orders from the Texas Supreme Court.
Justice ENOCH, concurring.
I only take issue with the Court‘s approach to this matter. The phrase “making a mountain out of a mole hill” comes to mind.
This Court is empowered to determine the qualifications of persons authorized to practice law in this state‘s courts.1 With that power comes the necessary ancillary power to stop the unauthorized practice of law. The Unauthorized Practice of Law Committee is simply an entity that has the standing necessary to litigate whether one is practicing law without authority.2 The UPL Committee has no independent regulatory power. Its power is that of аny other plaintiff—it can investigate whether to sue, and can bring a lawsuit. As well, Nolo Press, if sued, would have the power of any other defendant—it could choose to defend and have discovery. If the UPL Committee decides to sue and if Nolo Press decides to defend, a court will decide the case. This is the entire matter. Yet the Court jumps the gun by entertaining Nolo Press‘s request for a writ of mandamus and elevating this case with the mantra of open records.
Why the Court jumps the gun troubles me. I cannot imagine under any similar circumstance that the Court would enable a potential defendant to pretermit a plaintiff‘s suit and the orderly application of the discovery rules through a mandamus action. This is particularly so because the legislature has empowered potential defendants to invoke the jurisdiction of the courts and the power of discovery through the device of declaratory judgment3—a device, by the way, that Nolo Press evidently knows how to use.4
It also troubles me that we usе this one case to alter an administrative rule that has been in effect for thirteen years. And we do so without any comment on the proposed changes from the UPL Committee members or any other interested persons. Nolo Press certainly is not the only one with an interest in the operation of the UPL Committee. Furthermore, I do not think it‘s fair to say that our comment period for Administrative Rule 12, which generally deals with judicial records, was fair notice that our previous specific order concerning the Unauthorized Practice of Law Committee was to be changed.5 In fact, I‘m confident the Court didn‘t even know that that order was under consideration. So how could our committee know at the time that this order was being reconsidered?
I agree that the request for mandamus should be dismissed because this Court doesn‘t have jurisdiction. While I also agree with much of what the Court says, the opinion serves only to build a mole hill into a mountain. The writ should be dismissed without further comment.
IN THE SUPREME COURT OF THE STATE OF TEXAS
Misc. Docket No. 99-9082
IN RE PETITION OF NOLO PRESS, INC. TO AMEND RULES GOVERNING THE UNAUTHORIZED PRACTICE OF LAW COMMITTEE
PER CURIAM
In Cause No. 98-0724, styled In re Nolo Press/Folk Law, Inc., relator Nolo Press, Inc., a publisher of self-help lеgal books and computer software, has petitioned for a writ of mandamus compelling the Unauthorized Practice of Law Committee of the State Bar of Texas to produce certain documents and information, and alternatively, for clarification or modification of this Court‘s September 16, 1986 Order1 that limits disclosure of Committee records. In today‘s opinion in that case we deny mandamus relief and, for reasons there explained, conclude that Nolo Press‘s alternative request for clarification or modification of the 1986 Order should be treated as an administrative matter.2 We here address that matter.
The 1986 Order makes all the UPL Committee‘s records confidential. Before considering modifications to this Order our usual procedure would be to call for comments from the Committee and all interested persons. That procedure has already been served last year, however, by the Judicial Council‘s lengthy study and several public hearings regarding disclosure of certain records and informаtion possessed by courts and agencies in the Judicial Department. Although the study did not focus on the UPL Committee, all persons interested in the confidentiality and disclosure of records of all judicial agencies were invited to comment. The Court received no comments specifically related to the UPL Committee. Based on the Council‘s recommendations and public comments, the Court promulgated proposed Rule 12 of the Rules of Judicial Administration, subject to comments received prior to its effective date of April 1, 1999.3 After receiving additional comments and making other changes, the Court has promulgated Rule 12.4
The UPL Committee is a “judicial agency” as defined by Rule 12.2(b), but because this Court‘s 1986 Order makes all the Committee‘s records confidential, Rule 12 does not apply to the Committee.5 Rule 12 is designed to protect a judicial agency‘s records from public disclosure when its function would be compromised, and otherwise to make records available to the рublic on request. We see no reason why this rule should not apply to the UPL Committee as it would to any other judicial agency; indeed, one goal of Rule 12 is a uniform treatment for judicial records throughout the judicial department. Since the UPL Committee has no adjudicative power, all its records would be judicial records as defined by Rule 12.2(d).
Nolo Press has requested four categories of information and records: (1) the names of the UPL Committee‘s subcommittee members; (2) the dates, times, locations, agendas, and minutes of past and future meetings; (3) copies of the Commit-
Accordingly, we conclude that our 1986 Order should not insulate the UPL Committee‘s records from disclosure under Rule 12. Vacating that Order will place the UPL Committee under Rule 12.
IT IS THEREFORE ORDERED that the Court‘s September 16, 1986 Order relating to the Unauthorized Practice of Law Committee is vacated.
SIGNED AND ENTERED this 15th day of April, 1999.
/s/ Thomas R. Phillips
Thomas R. Phillips, Chief Justice
/s/ Nathan L. Hecht
Nathan L. Hecht, Justice
/s/ Craig T. Enoch
Craig T. Enoch, Justice
/s/ Priscilla R. Owen
Priscilla R. Owen, Justice
/s/ James A. Baker
James A. Baker, Justice
/s/ Greg Abbott
Greg Abbott, Justice
/s/ Deborah G. Hankinson
Deborah G. Hankinson, Justice
/s/ Harriet O‘Neill
Harriet O‘Neill, Justice
/s/ Alberto R. Gonzales
Alberto R. Gonzales, Justice
APPENDIX I
IN THE SUPREME COURT OF THE STATE OF TEXAS
Supplemental Order to the November 17, 1980 Order Adopting Rules for the Unauthorized Practice of Law Committee
WHEREAS, the Unauthorized Practice of Law Committee is appointed by the Supreme Court of Texas; and,
WHEREAS, the Committee currently operates pursuant to rules considered and approved and ordered adopted by the Supreme Court, in banc, in chambers of November 17, 1980; and
WHEREAS, The Committee in its work discharges its obligations on behalf of the Supreme Court;
IT IS, THEREFORE, ORDERED that the rule adopted as “Exhibit A” and attached hereto and incorporated by reference by adopted by the Court, in banc, in chambers, this 16th day of September, 1986.
s/ John L. Hill, Chief Justice
Sears McGee, Justice
Robert M. Campbell, Justice
Franklin S. Spears, Justice
C.L. Ray, Justice
James P. Wallace, Justice
Ted Z. Robertson, Justice
William W. Kilgarlin, Justice
EXHIBIT “A” UNAUTHORIZED PRACTICE OF LAW COMMITTEE
Rule No. __________
Section 12.
Said Committee shall keep all records, documents and other information of the Unauthorized Practice of Law Committee and its subcommittees (hereinafter referred to collectively as the “Committee“) that are in its possession for the purposes of discharging its obligations in behalf of the Supreme Court confidential and shall release same only:
(1) For the Committee‘s use in enforcement proceedings to eliminate the unauthorized practice of law;
(2) To satisfy all other requirements of the Committee pursuant to
(3) In response to proper requests of or to assist law enforcement agencies and prosecutors in the detection, investigation and prosecution of crimes; and
(4) In furtherance of any other orders from the Texas Supreme Court.