*1 рosing testimony the admission of or evi- 215(5) object
dence under rule when the
testimony or evidence offered at trial. Inc., Trailways
Clark v. 774 S.W.2d
(Tex.1989).
I square do not believe that eanwe Kram- Sharp
er with and Clark.1 The'Court’s effort
to distinguish Sharp per- Clark does
suade me. In footnote the Court asserts Sharp and Clark differ from the case at Sharp
issue and from Kramer because
Clark the witnesses were not identified and, interrogatory responses written 215(5)
therefore, clearly applies Sharp rule 215(5) applies
and Clark. Whether rule here question
is immaterial to the of whether Mo- objection.
rua Sharp waived his and Clark objection party’s
stand for the rule that a
trial testimony timely. to a witness’s holding
Kramer and the Court’s circum- here
vent this rule.
Accordingly, although agree with the require party verify
Court’s decision to answers,
supplemental interrogatory I dis-
sent from the Court’s conclusion that Morua objection
waived his to the lack of verification
by waiting object. until trial appeals’ judgment.
affirm the court of SATTERWHITE, Jr., Appellant,
William
v.
The STATE of Texas.
No. 1474-97. Texas,
Court of Criminal
En Banc.
Sept. party Over- recently wants to offered at trial and not later. See Maritime 1. The Court held that if (Tex. Ellis, Corp. object expert testimony seas v. Daubert/Robinson 1998); objection Cо. grounds, party see also E.I. du Pont de Nemours and has to make that Robinson, (Tex.1995). testimony pretrial either or at least when the *2 Appeals’ rendition
The Court
correct,
liberty
take the
therefore we
facts is
the bench
the benefit of
them for
to recite
and bar:
Houston,
“
Wice,
appellant.
for
Brian W.
was notified
May
appellant
On
Bar dues were due
State
that his annual
Paul,
Pros.,
Vollers, Special
Matthew
Jim
Prior to
payable
June
Austin,
Atty.,
for the State.
State’s
however,
1, 1993,
appellant was sus-
May
re-
the MCLE
pended
failure to meet
for
APPELLANT’S PETITION
OPINION ON
1, 1993,
30-day
July
On
quirements.
REVIEW
DISCRETIONARY
FOR
attorneys
‘grace period’ afforded
McCORMICK, Presiding Judge, delivered
Appellant was
expired.
had
their bar dues
joined by
opinion of the Court
because, as
reminder notice
not sent a
MANSFIELD, KELLER,
HOLLAND
above,
already
sus-
was
appellant
stated
WOMACK, Judges.
noncompliance with the MCLE
pension for
violating
Appellant was
indicted
requirements.
Code,
Penal
Section 38.122
Y.T.C.A.
1,1993, a letter was mailed
September
“On
person,
with intent
makes it an offense for
notifying
appellant
Bar to
from the State
himself,
to obtain an economic benefit
law
appellant that his license
he is
hold himself out as a
unless
nonpayment of State
suspended for
was
law in this
licensed
1993, appellant
In
sent
Bar dues.
October
State,
country,
Bar. These checks
two checks to the State
standing
Bar of
and is in
with the State
аmount and
in the correct
were not written
alleged that the of-
Texas. The indictment
Appellant
Bar.
returned
on or about December
fense was committed
in November
sent another check
15, 1995,
jury
November
On
improper
for an
which was also written
in
in-
appellant guilty
charged
found
November
amount and returned. On
punish-
appellant’s
and assessed
dictment
appellant
received from
1993 a check was
Divi-
ment at confinement
the Institutional
amount,
was
but this check
the correct
Department of
sion of the Texas
Criminal
to insufficient funds.
due
years,
Justice at
term four and one-half
4, 1994,
January
until
$7,500.00
fine.
and assessed
proper
finally paid his bar dues
appeal,
Corpus
On direct
Christi
amount.
conviction,
appellant’s
affirmed
“However,
13,1993, at a time
on December
rejecting appellant’s contention that the evi
practice law in
appellant’s licencе to
when
legally insufficient to sustain the
dence was
represent-
suspended, appellant
verdict. Satterwhite
jury’s
as his
of record
ed John Lemke
1997).
Christi,
(Tex.App.-Corpus
felony criminal eases. For this con-
seven
retroactive
“[t]he
duct, appellant was indicted under section
past-due
effect
falsely
the Texas Penal Code for
38.122 of
effect on
dues had no
Satter-
lawyer.”
holding himself out as a
himself out as an
white v.
1. At the time of requirements. Appellant subsequently this MCLE notice, not sent a reminder ready because he al- requirements August met those as of suspension noncompliance on for place, December member, took who has criminal When a been deemed, assessments, retroactively, to have nonpayment fees or for standing with the Bar. by payment of fees removes such default been owing, plus an addi- or assessments then Nevertheless, majority gives two ratio- to equivalent amount one-half tional affirming conviction. for nales automati- delinquency, the shall First, language of Art. argues it cally be the member restored lifted and re- provides that retroactive § which status status. Return former formеr “... shall affect good status not turn to inception shall be retroactive to for discipline for of the member sion, any proceeding but not shall affect ap- still allows for professional misconduct” discipline profes- the member for § 38.122. prosecuted under pellant misconduct, added) (emphasis sional unclear, ap- Although it is rule language clear It is prose- arguing is pears that returned that an former status is “proceeding cution made, it is deemed once professional discipline of suspension. apply from the initial date of language of disagree. misconduct.” apply in this Ill, § states that the retroac- Art. disciplinary measures. regard status “... shall tive return former any proceeding Reading the penal statute and misconduct,” can together, appellant’s conduct member Bar Rule then reasonably interpreted to cover disci- certainly рrohibition only fall did not When his dues Furthermore, 4, 1994, prosecutions. criminal January his former status of Rules or nothing in the State Bar standing was reinstated and was deemed there result, July appel- anywhere suggest As a else to this *6 go back to fact, prosecution; a prohibition encompasses not fit the criminal lant does within 38.122, alleged contrary appears § to be the since on the date that the the case.3 (K) (N), reprinted majority Ann., tit. the in Tex. 2. The stаtes that of section Gov’t & Code G, ("Disci- (Vernon 7(a) Supp.1998) appellant may app. "... face indicates that still subtit. A-l any discipline by Proceedings” investigation the defined State bar as prior lifting Inquiry Complaint processing or be- conduct occurred the of an and Action; suspension. Appellant subject prosecu- Disciplinary “Inquiry” is still as a defined fore during by concerning attorney tion for him written matter Ante, (slip by Disciplinary ...” at 628 received Chiеf Office true, that, op. together, allege Taken these two sentences Pro- even if Counsel prose- majority arguing that Disability; "Complaint” indicate that or fessional Misconduct § "proceeding under for disci- cution 38.122 is by the matters received as those written defined pline member for miscon- Disciplinary Office of Chief Counsel duct.” upon screening or either on the face thereof or allege preliminary investigation, Professional both, Disability, cog- or or Misconduct See, 81.071(0 (distin- e.g., § Code Gov't Tex. Disciplin- under rules or Texas nizable these prosecution guishing between anof Conduct; “Disciplin- ary Rules of Professional disciplinary and for a crimi- action by ary proceeding brought or as Action” defined weight nal act based either on the of the convic- evidentiary panel against an an before by led to or on conduct tion any judicial cov- conviction); of Cоmmittee or Tex. Procedure). by Disciplinary Rules XIII, ered reprinted § Ann., tit. in Tex. Tex.R. Gov't Code 2.01-2.21, Disciplinary P. (Vernon Gov't G-app. Supp.1998) (disciplinary subtit. Tex. G, (Vernon app. tit. A-l subtit. imposed by Code Su- are to Ann., (setting procedures fol- Supp.1998) out Bar); Disciplinary preme P. Court or State TexR. Committees); by Preamble, Grievance lowed District tit. in Tex.R. Gov't Code Ann., 4.01-4.08, reprinted (Texas Disciplinary G, P. Tex. Gov’t subtit. A-l G, tit. A-l subtit. statutory Supreme Court has constitutional and Ann., Supp.1998) (setting procedures out to be fol- responsibility lawyer within Texas Discipline); by Lawyer Commission for disability responsibility ad- lowed system and and ministering 5.01-5.03, reprinted in Disciplinary supervising lawyer discipline P. TexR. G, (Ver- disability subtit. A-l delegated Directors to Board of selection, Bar); (I), 1.06(F), Supp.1998) (setting duties and out P. non of State Tex.R. majority suggests junetion Retroactivity that it is con- with the Clause Art. Ill, struing Rules, § § Art. it 7 as does because to 7 of the do does not lead unconstitutional, otherwise would render it to an only prohibits absurd result. crimi- conviction, § since it 38.122, § would nal conflict 38.122. In other of a member words, if the attempts state bar rule the Bar standing to “alter who was not due negate” 38.122, or solely pay then it is unconstitutional. to a failure to his dues and who true, time, undoubtedly This is since held himself out as a “trump” state bar rule cannot but who subsequently prior override a such dues indictment, Legislature. statute enacted To do so deemed to Const, II, surely would § violate art. be in standing at time. It does not (division powers), prohibit prosecution, § as well as of one Const. I, § Legislature art. (only may suspend who was other state). laws of apply. reason for which does not Also, course, prohibit disciplin- it does not simply for the assert ary action Bar of one who was put this truism an as answer the cart in good due to a failure to before the The real horse. issue to deter- his dues and who himself out as a interpretation mine is whether or not lawyer during that time. See Commission Retroactivity § Clause of Art. 7 of Lawyer Sherman, Discipline v. prohibit pros- State Bar Rules that would (Tex.App.Houston S.W.2d 227 [1st Dist.] § ecution under 38.122 Penal Code writ).4 1997,no “negate § would or alter” 38.122. As noted above, above, I Based on the would hold fully incorporates 38.122 the con- cept legally evidence was insufficient to “good standing,” provided sustain by the Bar, jury’s modification, finding not in specifi- without good standing with сally essen- modify concept does not with the Therefore, Thus, tial element of “currently.” term reading of judgment reverse the the Court of indicates that to the Bar’s defers and set conviction. is, aside “good standing.” determination of That if the Bar determines that a member inwas reasons, For the foregoing dissent. time, particular at a even ret- roactively, nothing, by there is the terms of *7 itself, negated.” to be “altered or important emphasize it is 38.122,
such an interpretation of in con- 15.04, , Counsel); ary accountability Disciplinary reprinted in of Chief P. tit. Gov’t Code Ann 6.05, G, (Vernon (the Disciplinary reprinted Supp.1998) app. P. in subtit. A-l Gov’t Tex.R. G, (Vernon app. Complaint, processing Inquiry, Disciplin- tit. subtit. A-l of an Code Ann., (final not, disposition any Disciplinary ary Disciplinary Proceeding, or Action is cause, Proceeding Disciplinary resulting except delayed or Action or abated imposition private repri- similarity оther Sanction than because of to the material substantial reported by mand shall allegations tion). pending litiga- Commission to the civil or criminal Texas); Supreme Clerk of the Court of TexR. 6.07, Disciplinary reprinted P. in Tex Gov't Code G, majority Supp. justifies tit. subtit. A-l 4. The its decision distin- Ann., 1998) (relating publication disposition guishing of final our in Hill v. decisions Disciplinary Proceedings (Tex.Crim.App.1965) Disciplinary of all Cantu v. Actions); (Tex.Crim.App.1996) Disciplinary P. TexR. G, subtit. tit. A-l instant case. Because Gоv’t Ann., (Vernon Supp.1998) (limiting reading Retroactivity access to confi- of 38.122 and Clause records, information, clearly prohibits appel- dential relating Disciplinary Proceeding, Disciplinary lant’s result, does not lead to an absurd conviction and Action, necessary Disability suspension); it is to discuss these cases. Tex.R. Disci- 7.01-7.12, factually P. is notable G, distinguishes Supp. A-l Cantu from the subtit. Hill and instant 1998) case, adequate (setting procedures give an out but does not basis to selection Appeals); legally distinguish Disciplin- Board of them. Tex.R.