*1
829
Harville,
also
v.
See
Siebenlist
(Tex.1980); Turner v. General
S.W.2d 113
(Tex.
Corp.,
Motors
S.W.2d
1979);
Goldsmith,
Baker v.
S.W.2d
Bell,
(Tex.1979); Mobil
v.
Chem. Co.
(Tex.1974);
Ingle
Scott
Bros.
Pac., Inc.,
(Tex.1972);
ed, no reversible error. Dulick, Inc., Ferguson Dulick, & Harry L. TEXAS, Relator, BAR OF STATE Cleburne, petitioner. Rhatican, Dallas, Ken Davey, R. Tim B. HEARD, Wyatt H. Honorable Keller, Meier & Wallace T. Keller and Ed- Judge, Respondent. Euless, ward G. Markey, respondents.
No. B-9033. PER CURIAM. Supreme Court of Texas. brought is a suit under the Texas July 1980. Deceptive Trade Practices Act. The court Rehearing Sept. 12, Denied 1980. of civil appeals has reversed and remanded for new trial. 596 disposi S.W.2d 256. Our application
tion of the for writ of error
should interpreted not be approving as
court’s reliance upon ap the court of civil
peals opinion in American Transfer & Stor Brown,
age v.
(Tex.Civ.App.
-Dallas with regard to
the proper submission of the liability issues
(cid:127)in such a opinion case. This court’s in that
case reversing of the court of
civil recommends submission in
terms possible actually as close as to those
used the statute. The language may
statute be altered somewhat to con
form the issue to the evidence of the case. Co.,
Brown v. American Storage Transfer & (Tex.1980).
Broad issues are by this court in
Deceptive Trade Practices cases. Brown v. Co., Storage supra;
American Transfer & Williams,
Spradling (Tex.
831 *2 Circuit, Appeals,
Court of Fifth and that pending. is now Bar of Texas July the State complaint filed a Heard’s court Act, pursuant 16 of the § *3 (Vernon), art. 320a—1 Tex.Rev.Civ.Stat.Ann. seeking suspension of Pruitt’s law during appeal license of the conviction and seeking upon proof further disbarment Thereafter, the conviction was final. filed “Motion for Judgment” which asked the court an for suspending order during pendency of his appeal. Heard, The respondent, Judge denied the motion, stating denial was without prejudice to reassert if and the motion when the criminal conviction became final on passed Bar Act1 was aid of this court’s exercise of its inherent Zunker, Jerry Counsel, Gen. Steven D. power regulate practice of law.2 Peterson, Counsel, First Asst. Gen. provides pertinent Section 16 of that act Texas, Austin, for relator. part: Jefferson, Andrew Jr., Houston, L. (a) 16. No attorney Sec. shall be sus-
respondent. pended practice, except by the at- torney’s concurrence under an order of SPEARS, Justice. suspension grievance entered com- In this original relator, proceeding, mittee, until such attorney has been con- Texas, State Bar of prays this court to issue charge charges victed of the or for dis- a writ of mandamus compelling respondent, pending against barment him or her in a Heard, Wyatt to render an order competent jurisdiction. court of Provid- suspending the practice license to law of ed, however, proof that on of conviction Ronald B. Pruitt during pending appeal attorney any of an court of com- from Pruitt’s conviction conspiracy jurisdiction petent any felony involv- commit mail fraud and substantive mail ing turpitude any moral or misdemean- fraud. We conditionally grant the writ. theft, embezzlement, or involving the or 30, 1979, April On Pruitt was convicted money fraudulent or misappropriation by a jury in a United States District Court other property, the district court of in Florida of one count of conspiring county of the residence of the convicted commit (Title 371) mail fraud attorney U.S.C. shall enter an order § and six counts of substantive mail fraud attorney practice from the of law (Title 18 U.S.C. Pruitt was § sen- during any tenced years imprisonment to three attorney each An who has conviction. count, to be served concurrently. conviction, He given then been probation after the perfected his appeal to the United States adjudicated unadjudicated, whether or 16(a) substantially non) Tex.Gen.Laws, 134, 6, 1. Section identical to with 1969 § ch. at § prior of the State Bar Act as it existed before 364. Compare its reenactment on June 1979. Texas, 320a-l, Supreme 16(a) (Ver- 2. See 1A Tex.Rev.Civ.Stat.Ann. Order of the Court of art. § (Vernon Supp.1979). Tex.Rev.Civ.Stat.Ann. enjoined suspended duty mandatorily upon shall be from the to be which, proof law probation. On him and as if it thus exists, any discretion, felony involving final conviction of he have a case turpitude any nature, or misdemeanor in- of this which has been held to theft, embezzlement, volving parties require litigant fraudu- adverse the re- money brought proceeding, lent lator to be misappropriation into of the property, county presented. the district court of the convicted attorney residence Wray, cases Tex. of Williams v. judgment disbarring shall enter a him or (1934) and Lanford v. her. Smith, (1936), Heard, by respondent distinguish- are
cited a judicial cases was able. those there (b) seeking disbar rights function involved affected attorney for acts made the basis of a *4 Williams, a of absent In manda- party. an felony involving conviction for a moral compel judge the sought mus was to district turpitude involving or a misdemeanor Lanford, proceed to to trial in cause. theft, embezzlement, a misap- fraudulent appeals of reversed the trial the court civil propriation money or other property, privilege, overruling plea order the record of be conviction shall conclu- rendering judgment but instead of guilt attorney sive evidence of the of the transferred, ap- court of civil case be the for the of which he or crime she was convicted, peals the a new venue remanded case for added). (emphasis theory appear the it did not trial on that gives This statute the court district no dis- the that facts had been record the upon proof cretion and the conviction of cases, developed. this court fully In both a felony involving turpitude, the grounds on the denied a of mandamus mandatory duty court had a to an render parties rights whose absent that there were order to suspending by is- the injuriously would be affected law during of his the suance of a mandamus. Respondent argues Heard that however, us, no judicial In the case before writ of is appropriate mandamus not an involved; required act is is rather the act First, remedy here he for several reasons. merely Commissioner ministerial. Pruitt, that has contends who not been Smith, 5 General Land Office party proceeding, made a to this is a neces (1849) this court observed: sary party, relief cannot be without whom between ministerial The distinction granted, rights since Pruitt’s would be di acts seems to be judicial official and other the of the writ. rectly affected issuance and defines prescribes where law that the We overrule this In Dick v. contention. preci- with such duty performed to be Kazen, 156 Tex. 916-17 nothing to certainty as leave sion and case, (1956), responded an to a election we judgment, or the exercise of discretion argument, saying: similar ministerial; is where the act act but application presents only ques- [T]he be done involves the exercise of discre- ascertaining tion of or whether not determining whether judgment tion judge of district court refused exists, is to be deemed duty it not involving only do an act official official merely ministerial. power upon duty arbitrarily laid him which, judg- performance present if In the case no discretion required, way necessary be so could compre- it ment was 16(a) any legal right, of section impairment provisions hend follow the clear might the rule which be Act. We reaffirm asserted circumvent of the State Bar Kazen, legal requirement. supra, such Where 292 S.W.2d at applica- in Dick need litigation tion for a sought writ of mandamus that adverse parties compel judge to what is alleged parties trial do not in the mandamus power 1824. The which involves view article mandamus only rigid absolute and is limited to appeals trial of the court of civil duty court to follow a fixed and to trial directing proceed the trial court to prescribed involving course not the exercise judgment and does not include judgment or discretion. In such an in- writ, power to tell that court what granted, only stance the if run Snell, should enter. Weber v. against judgé.3 (Tex.Civ.App. [1st Dist.] - Houston Respondent next contends that 1976). the court of civil Nor does mandamus will not lie until the Bar to order the trial court to jurisdiction have application has first made to the court of set aside a void order. Crane appeals. argues civil He that the State Bar Tunks, 182, 328 160 Tex. merely asking this court to order the trial Betts, Chapa judgment, to enter a a matter over (Tex.Civ.App. - Austin which the of civil appeals has concur Respondent argues Heard next jurisdiction rent under Tex.Rev.Civ.Stat. this court mandamus will not lie because (Vernon). agree. Ann. art. We do not jurisdiction to correct an inci does not have State Bar asks us to order Heard court in the ruling dental made trial to vacate his order denying the interlocuto when orderly course of ry order and to render an order He adequate remedy there is an available. Pruitt’s license pending appeal of his con may urges further the State viction. Although captioned *5 prosecute appeal denying an from the order the relief it sought in the trial court a instead, summary judgment; a motion for summary judgment, motion for it is clear proceed he to says State Bar should reading the instrument that the State appeal trial in the disbarment suit and asking, was not at that point, for sum ruling. adverse Rather, mary judgment. it was a motion to special invoke the remedy suspension noted, the Bar’s As we have State provided by statute.4 We look to the summary motion the nature of a was not in plea substance of a for relief to determine judgment, praying but was a motion for an the pleading, merely nature of the not at specifically provided for interlocutory order the given form of title to it. Tex.R.Civ.P. required by Except and statute. in rare (Vernon 1979). State, instances, 71 Rose v. See 497 this court will not issue writs of (Tex.1973).5 S.W.2d 444 rulings The State Bar’s control or correct on mandamus to motions, motion for suspend an order immediately merely which are incidental to the ing sought Pruitt’s license an interlocutory process, adequate normal trial when an order while the case for disbarment was correction of remedy by appeal exists for pending. pur- ruling. This relief is not within the ex rel. Pettit any erroneous prays 3. The record in this case that for such other and further relief to which discloses attorney representing respondent entitled, may including Heard is the it show itself all costs of attorney representing same in added). Pruitt the trial (emphasis court.” pro- court. All matters filed in this mandamus Texas, v. State Bar of 600 S.W.2d Freedson ceeding were furnished to Pruitt’s counsel (Tex.Civ.App. 349 [1st Dist.] —Houston argument sought whose brief and to advance pending), sought writ the State Bar the same in Pruitt’s interests as much as by judgment. relief Since use of the Heard’s. summary judgment apparently vehicle of was challenged by appellant, not the court did summary judg- 4. The State Bar’s motion for question point write not prayed not and the is grant ment that “the court this Motion pending application. Judgment, raised and that this Interloc- utory Judgment be entered favor captioned a Motion 5.In an instrument Rose against Plaintiff [State Defendant Bar] Judgment, Requesting filed [Pruitt], to Amend Its Court the law license the De- long county judgment became any appeal after the court’s fendant final, herein, this court as an action from the was treated convictions cited conviction, upon proof equitable of final the Defendant the nature bill of review. be, Court, by this disbarred. Plaintiff further 834 Moreover, Thurmond, (Tex. because order com
v.
516
121
S.W.2d
1974);
445
Pope
Ferguson,
v.
order,
denying
plained
is an
will, however,
(Tex.1969).
issue
We
license, ap
suspend Pruitt’s
the motion to
directing
a trial
of mandamus
is
Bar.
peal
not available to
particular
enter or set aside a
or Therefore,
required
would be
the State Bar
order when the directed course of
is
appeal
decided
wait
the federal
is
until
petitioner
and the
only proper course
is heard before
and the disbarment suit
adequate remedy.
no other
State ex
respondent
appeal
failure
Thurmond,
Pope
supra;
rel.
v.
Pettit
requirement
Pruitt’s license.
Ferguson, supra.
those circumstanc
Under
16(a)
effectively repeal
of the State
§
would
es,
lie when there is a clear
mandamus will
however,
Act,
question
because
McCain,
abuse
as in
of discretion
Stewart
(Tex.1978);
rendered
once
suspension
835
devising of a scheme to defraud or to
necessary
involving
element is a crime
mor-
pre-
false
money
property
obtain
turpitude.
DeGeorge,
al
Jordan v.
341 U.S.
tenses,
703, 705,
representations,
promises,
223, 227, 71
summary judgment. that a practices and principles The essential elements of mail fraud olates settled to fore- proper vehicle under 18 1341 are the intentional mandamus is not U.S.C. § Summary and Is a Was making stall trial errors nor to courts Judgment Proceeding gross correct their obvious and errors. even 1.1(1),at 10 Appellate Procedure in Texas § this The Bar filed action (2d is not writ ed. Mandamus license to disbar Ronald Pruitt’s law and appeal nor which affords an accelerated if his conviction is affirmed him by leaping over the trial called priority of review filed what it its Bar then The State Judgment. prayed Summary It appellate practice A which for process. and Motion for Sum- court this Motion grant that “the hearing direct before the tolerates a Su Interlocutory Judgment, and this mary rulings preme on trial court defeats Court in favor of the Plain- be entered Judgment process we appellate trial and as orderly Defendant, suspending the law against tiff Pope Ferguson, 445 fully stated in penden- of the Defendant license (Tex.1969), denied, cert. convictions from the cy any appeal 25 L.Ed.2d U.S. 90 S.Ct. a hear- .” trial court ordered . The (1970): for Motion ing foregoing on “the intervention, Moreover, with this type Opposition filed his Judgment.” Mr. Pruitt concept the fundamental of all American Summary Judg- for to Plaintiff’s Motion judicial of trial and would systems by plead- ment, replied and Having become outmoded. entered the ing: thicket one to control correct such cur- judgment evidence summary ruling, appellate courts would herein, pursuant to Rules rently on file proceedings soon asked in direct be Procedure, 166-A, Texas Rules Civil require by writs mandamus that trial Formal Original the Plaintiff’s include orders, orders, judges or set aside enter . . Such documents Complaint . . (1) pleas to the sustaining overruling among those in this cause are on file (3) (2) pleas privilege, jurisdiction, Rule set specifically forth documents abatement, (4) motions pleas in for sum- 166-A, Procedure of Civil Rules Texas (5) for mary judgment, motions instruct- genuine issue show that there verdict, (6) judgment ed for non motions fact, and that as to material veredicto, (7) new obstante motions for as a judgment Plaintiff entitled trial, myriad and a orders Motion. out in its of law as set matter each, and, might judgments; as to that it prayer stated Bar in its The State petitioner argued that the logically be its Motion Summa- “reurges ... entitled, the writ was as a matter of .” filed ry Judgment heretofore sought compelled. to the on the trial court hearing before pend- suspend the suit to State Bar’s More court’s embrac- disturbing than the conviction, appeal of Mr. ing the ing permits which case summary judg- as a exactly was conducted ball “bounce like a rubber back forth of admissions by use proceeding ment Supreme between the district and of no affidavits. I know Marks, (Maresca Court” hearing that than a J., (Tex.1962) (Walker, dissenting), is the of fact issues permits the settlement us. with the record before liberty 166-A, Rule Tex.R.Civ.P. affidavit. *8 will inter- Recognizing that this court not recit- that signed an order summary judge The trial by partial vene mandamus in ed: and other interim judgment proceedings level, Plain-
rulings opinion the trial court the court at is the Court’s that [I]t Judgment Summary Motion for surprisingly supports by its decision declar- tiff’s it is did arise should be denied ing that trial court’s action ORDERED, a matter. This AND DE- summary judgment out of ADJUDGED Summary whole for analysis is not a or fair this Motion correct CREED that Bar of Tex- by the State Judgment filed record. majority do precedents cited is, The as, be, hereby and the same denied for the a mandamus will lie not hold that They fall summary judgment. of a denial docu- come to the Bar’s We now State of cases group first groups. into two The before this court. The State ments filed McCain,575 v. for writ of mandamus includes Stewart application Bar’s the trial Hosp., filed in this court stated that Texarkana Memorial (Tex.1979); Summary Judg- its for denied “Motion Jones, (Tex.1977); Inc., v. ment,” “the appeal that it has no Industries, Cunningham, Inc. v. Houdaille Judg- denial of the Motion (Tex.1973),and Maresca 502 S.W.2d this ment.” The Bar’s brief before State (Tex.1962). This Marks, 362 S.W.2d that document it filed and court states cases to in each of those court intervened was “its that was heard privi- or substantive protect a constitutional Summary Judgment.” Its first Motion because, informa- privileged lege, once has, point Respondent in the brief is: “The not be re- disgorged, it could tion was Relator’s Mo- by entry denying of an order group of cases trieved. There is another judi- Summary Judgment, applied tion for of the grant the court’s support cited to au- clearly cial discretion to a statute that They are summary judgment. motion for thorizes no discretion.” Thurmond, 516 ex rel. Pettit State opening The Bar in its statement Board of In- (Tex.1974); S.W.2d 119 to this court should settle argument oral Betts, 158 Tex. surance v. application the nature of its for this court’s (1958); Rogers, Stakes told this of mandamus. Counsel .court: Fergu- and State complain we denies The order of which son, 133 Tex. judgment relator’s motion for the rule for Those cases do not stand for opinion. in the court’s they which are stated says But the of this court opinion which this court inter- are cases in Those summary judgment was not a had taken because the trial court vened hearing. jurisdic- power which it lacked action for thicket. The court has thus entered the tion. We have done so to set aside a denial of has taken decision summary judgment by today’s and this court has itself The court granted summary judgment, while the trial court’s intervene when step languishes cause still in the trial court. now wrong. One need not clearly ruling he need not appeal; of an proceed by way right it has no argues State Bar that requirements satisfy jurisdictional that appeal, pleaded but itself into a trial only that posture. It had to do no more than file a He need show article 1728. go unambiguous suit to law license a clear and judge has violated Then either party trial. forbidding conferring or provision statutory judgment. pleading single a final in a By particular action. much, suspension action for too dissent. respectfully I future, in the license and disbarment get cannot a final until State Bar appeal.
Pruitt’s conviction becomes final on J., CAMPBELL, joins in this dissent. now, its Even Bar could sever Justice, dissenting. GREENHILL, Chief it, go claim for disbarment or dismiss judgment. a final trial and obtain dissenting opinion. agree I with the seek pleadings invites opinion not, cannot, super- should This may urge one in an By doing too much. so mandamus, of all the actions vise it has extraordinary proceeding court, par- trial courts in this State. is true of interim and right That reason, not heretofore for that *9 tially now it was no interlocutory orders. Until denial of intervention. issued a mandamus basis for this court’s judgment and so should decline do here. are, opinion, ways
There in my
which the State Bar could have obtained it sought. relief misunderstood, however,
Lest I be I think that, my opinion, should be stated failing Heard erred says
license of Pruitt. The statute Ronald of com- upon any conviction in court felony involving
petent jurisdiction turpitude, “the district
shall the attor- enter our order
ney my Legisla- . .” In opinion
ture “shall” intended that “shall” means “may.”
and not sus-
This means that shall be
pended in a upon a conviction trial court.
It does not license shall not mean is af- suspended until the conviction provides disbar-
firmed. statute
ment, not an affirmance suspension, upon And, majority
of the conviction. as the states,
opinion conviction of mail fraud clearly of a involv- felony conviction
ing moral turpitude. WRIGHT, Appellant,
Eddie Lee Texas, Appellee.
The STATE of
No. 58000. Texas,
Court of Criminal Appeals
Panel No. 2. 20, 1979.
June Sept. 10, Rehearing
On En Banc 1980.