author: Justice FITZGERALD.

text:
    DAN’S BIG & TALL SHOP, INC. d/b/a Tall E Ho, Appellant, v. COUNTY OF DALLAS, Dallas Community College District, Dallas County School Equalization Fund, Parkland Hospital District, City of Dallas, and Dallas Independent School District, Appellees.
    No. 05-04-00299-CV.
    Court of Appeals of Texas, Dallas.
    April 13, 2005.

      Mike D. Gibbs, Dallas, for appellant.

      Charles Adren Caldwell, Edward Lopez, Jr., Linebarger, Goggan, Blair & Sampson, LLP, Dallas, for appellees.
    Before Justices MORRIS, MOSELEY, and FITZGERALD.
   OPINION

Opinion by

Justice FITZGERALD.

Dan’s Big & Tall Shop, Inc. d/b/a Tall E Ho appeals the trial court’s judgment for past-due ad valorem property taxes for the years 2000 and 2001. Appellant argues (1) its due process rights were violated because it was not given the opportunity for a hearing before its tax liability became final, and (2) when a buyer purchases a business sometime after January 1, it is liable only for a pro rata share of that year’s ad valorem tax, not for the entire year’s tax. For the reasons discussed below, we reject appellant’s arguments, and we affirm the judgment of the trial court.

Background

On January 1, 2000, a clothing store was operating at 650 Preston Forest Center in Dallas, Texas, under the name “Tall E Ho.” On that date, the store was owned by an entity named Tall E Ho, Inc. On August 25, 2000 Tall E Ho, Inc. and appellant entered into an Asset Purchase Agreement (the “Agreement”), whereby appellant purchased all assets of the Dallas store as well as a store in Houston from Tall E Ho, Inc. The Agreement provided that unpaid taxes would be appellant’s obligation as the purchaser and that appellant was granted the right to use the trade name “Tall E Ho.” However, appellant failed to withhold any amount of the purchase price for payment of the ad valorem taxes. Shortly after the purchase, appellant filed an assumed name certificate stating that it would be conducting business in Dallas County under the name “Tall E Ho,” and appellant continued to operate the store at the same Dallas address, under this same name used by the previous owner. Appellant paid no ad valorem taxes on the personal property of its business for the tax years 2000 and 2001. Appellees (collectively, the “taxing authorities”) sued to collect the delinquent taxes.

At trial, the evidence conflicted concerning whether and when appellant notified the taxing authorities that ownership of the clothing store had changed. Regardless, the trial court concluded that appellant received actual notice of both the appraised value of the property and the tax statements for the property when the taxing authorities delivered the tax bills to appellant’s correct business address under appellant’s assumed name, i.e. Tall-E-Ho. The trial court entered judgment that appellant pay all past-due taxes, interest, and penalties for the tax years 2000 and 2001. This appeal followed.

Withholding taxes From Purchase Price

Appellant’s second issue complains that the trial court used the wrong measure to determine the unpaid taxes for the year 2000. Appellant acknowledges it failed to withhold the amount of the ad valorem tax from the sales price when it purchased the business. However, appellant claims the trial court should have assessed appellant only a pro rata share of the year’s taxes while the trial court assessed the full amount of taxes owed for the year against appellant.

The issue is one of statutory construction, which is a question of law. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). When a business is purchased, the tax code imposes specific obligations on the purchaser:

(b) The purchaser shall withhold from the purchase price an amount sufficient to pay all of the taxes imposed on the personal property of the business, plus any penalties and interest incurred, until the seller provides the purchaser with:
(1) a receipt issued by each appropriate collector showing that the taxes due the applicable taxing unit, plus any penalties and interest, have been paid; or
(2) a tax certificate issued under Section 31.08 stating that no taxes, penalties, or interest is due the applicable taxing unit.
(c) A purchaser who fails to withhold the amount required by this section is liable for that amount to the applicable taxing units to the extent of the value of the purchase price....

Tex. Tax Code § 31.081. Appellant focuses on the single word “extent” in subsection (c). Appellant cites to two thesauri, arguing that “extent” is “defined” to mean “proportion, a relative intensity or amount,” and thence concludes that the legislature intended the purchaser to be liable only for a “proportional amount” of the unpaid taxes. We disagree.

The statute requires a purchaser to withhold “an amount sufficient to pay all of the taxes imposed on the personal property of the business.” Id. (emphasis added). The statute also makes the purchaser who fails to withhold the statutorily mandated amount “hable for that amount,” i.e., for the amount sufficient to pay all of the taxes imposed. See id. (emphasis added). The word “extent” comes into play only when defining the cap on the purchaser’s tax liability: subsection (c) imposes liability only to the “extent” of the purchase price. In this context it is apparent that “extent” means the point or limit up to which something extends. See WebsteR’s ThiRD New Int’l Dictionaey 805 (1981). In other words, if the taxes due exceed the value of the property, the tax liability of the purchaser extends only to the point or limit of the value of the property. But the purchaser is liable for the total amount of taxes imposed (plus penalties and interest) up to that limit. We will not read into the statute any pro rata limitation on this statutory liability. Appellant’s second issue is without merit.

Due PROCESS

Appellant’s first issue complains that section 41.411 of the tax code violates appellant’s right to due process because the statute fails to give the opportunity to be heard before the taxation becomes final. The section states:

A property owner is entitled to protest before the appraisal review board the failure of the chief appraiser or the appraisal review board to provide or deliver any notice to which the property owner is entitled.

Tex. Tax Code Ann. § 41.411(a) (Vernon 2001). A property owner is entitled to receive notice when the appraised value of its property is greater than the appraised value was in the preceding year. Id. § 25.19(a)(1) (Vernon Supp.2004-05). The record indicates that for tax year 2001, the appraised value of appellant’s property did increase from $415,170 to $436,538. Thus, appellant was entitled to receive a notice of the change. See id. We stress at the outset that section 41.411 has been held to satisfy due process concerns by affording “the property owner the opportunity to be heard at some stage of the administrative proceeding and in the trial court.” See Denton Cent. Appraisal Dish v. CIT Leasing Corp., 115 S.W.3d 261, 266 (Tex.App.-Fort Worth 2003, pet. denied) (“section 41.411 gives the property owner the opportunity to be heard at some stage of the administrative proceeding and in the trial court, satisfying due process”). The record raises two questions under this issue: (1) did appellant receive notice of the increased assessment, and (2) if not, did appellant comply with the statutory requirements to obtain a hearing. We address these questions in turn.

Did Appellant Receive Notice of Increased Assessment?

Appellant argues it never received notice of the change in its ad valorem assessment for tax year 2001. The appraisal district’s records, which were admitted into evidence at trial, indicate that notice of the change was mailed to Tall E Ho, Inc. d/b/a Tall E Ho at the correct Preston Forest business address. Appellant argues this was insufficient notice because it was not addressed specifically to Dan’s Big & Tall Shop, Inc. However, the trial court concluded that appellant received “actual notice” of the appraised value of its property (as well as regular tax statements for the years 2000 and 2001), when the taxing authorities “delivered the tax bill to [appellant’s] correct business address under [appellant’s] assumed name.” We agree.

We note at the outset that appellant’s argument, discussed above, concerning its 2000 tax bill — that it owed only a pro rata share of the taxes for that year — -clearly acknowledges its obligation to pay ad valo-rem taxes as the new owner of Tall E Ho. Given that obligation, when appellant received mail from the appraisal district at its business address, and the addressee included the business name Tall E Ho, appellant had an obligation to determine the appraisal district’s purpose in sending the mail. Appellant argues the mail was sent to the wrong addressee, i.e., Tall E Ho, Inc. However, the appraisal district sent the notice and tax bill to the business owner named on its tax roll, just as it was required to do by statute. See Tex. Tax Code § 25.19(a)(1) (“the chief appraiser shall deliver a clear and understandable written notice to a property owner of the appraised value of the property owner’s property if: ... the appraised value of the property is greater than it was in the preceding year”); see also § 31.01(a) (“the assessor for each taxing unit shall prepare and mail a tax bill to each person in whose name the property is listed on the tax roll or to the person’s authorized agent”). Appellant, on the other hand, as the owner of the business, had the obligation to render the property according to statute. See id § 22.01(a) (“a person shall render for taxation all tangible personal property used for the production of income that the person owns or that the person manages and controls as a fiduciary on January 1”). The trial court made no finding that appellant had done so. Indeed, on the undated rendition form appellant claims to have filed for 2001, appellant failed to give requested information concerning any applicable “sale, closure, or new location of the business.” Appellant had the obligation to pay ad valorem taxes and did not do so. Appellant cannot defend this failure on the ground that a required notice was sent to the “wrong” addressee, when appellant failed to give the appraisal district the necessary information to change the tax roll and to send notices to appellant. Simply put, to the extent notice delivered to appellant’s business address was inexact, the fault belonged to appellant, not to the appraisal district. Accordingly, we conclude that, under the circumstances of this case, receipt of the assessment gave adequate notice to appellant of the increase in the assessment. Thus, the question of a hearing based on failure to receive notice and the related question of appellant’s due process rights are not implicated by this record.

Did Appellant Perform Administrative Prerequisites to Obtaining Hearing?

Even if we were to decide that appellant did not receive adequate notice of an increased appraisal, we would still not identify a due process violation in this case. Section 41.111 does provide the opportunity for a hearing on the failure of a taxpayer to receive notice of an assessment increase. But to obtain a hearing on its failure to receive notice and a final determination of its protest, the property owner must perform two conditions before the date the taxes become delinquent: (1) file a notice of the protest, and (2) pay the lesser of (a) the taxes due or (b) the undisputed portion of the taxes due. Tex. Tax Code §§ 41.44(c) (filing notice), 42.08(b) (paying taxes) (Vernon 2001); see also CIT Leasing Corp., 115 S.W.3d at 264-65. If the property owner fails to comply with these prerequisites, it “forfeits [its] right to final determination of [its] protest.” Tex. Tax Code § 41.411(c). Appellant did not comply with either of these prerequisites. The law places the burden on the taxpayer to pursue its remedy in a timely manner. ABT Galveston Ltd. P’ship v. Galveston Cent. Appraisal Dist., 137 S.W.3d 146, 157 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Appellant failed to pursue its remedy at all. We conclude appellant has forfeited its protest rights under the tax code. See Tex. Tax Code § 41.411(c).

On both of these grounds, we conclude there was no violation of appellant’s due process rights, and we decide appellant’s first issue against appellant.

We affirm the judgment of the trial court.

      . We discuss appellant’s issues in reverse order because appellant’s second issue addresses the 2000 taxes, and its first issue addresses the 2001 taxes.


source: Caselaw Access Project

author: Justice WHITTINGTON.

license: Public Domain

text:
    In the Matter of J.L.C., a Child.
    No. 05-04-01070-CV.
    Court of Appeals of Texas, Dallas.
    April 14, 2005.

      April E. Smith, Mesquite, for appellant.
    Lori L. Ordiway and Laura Anne Coats, Asst. Dist. Attys., Dallas, for appellee.
    Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
   OPINION

Opinion by

Justice WHITTINGTON.

J.L.C. appeals the trial court’s order transferring him from the Texas Youth Commission (TYC) to the Texas Department of Criminal Justice (TDCJ) to complete the remainder of his determinate seven-year sentence. In one issue, J.L.C. contends the trial judge abused his discretion in ordering him transferred to the TDCJ. We affirm the trial court’s order.

On November 15, 2000, the trial judge declared that J.L.C. was a child engaged in delinquent conduct for committing aggravated assault and theft. The judge ordered J.L.C., who was fourteen years old at the time, committed to the TYC for a determinate sentence of seven years, with possible transfer to the TDCJ. Subsequently, the TYC requested J.L.C. be transferred to the TDCJ to complete his sentence. After the hearing on the request, the trial judge ordered J.L.C. to be transferred to the TDCJ.

In a single issue, J.L.C. contends the trial judge abused his discretion by ordering him transferred to the TDCJ. We review the trial judge’s decision to transfer a juvenile from the TYC to the TDCJ under an abuse of discretion standard. In re T.D.H., 971 S.W.2d 606, 610 (Tex.App.-Dallas 1998, no pet.); J.R.W. v. State, 879 S.W.2d 254, 257 (Tex.App.-Dallas, no writ). In deciding whether the trial judge abused his discretion, we review the entire record to determine if the judge acted without reference to any guiding rules or principles. In re T.D.H., 971 S.W.2d at 610. If some evidence supports the trial judge’s decision, there is no abuse of discretion. In re T.D.H., 971 S.W.2d at 610. We do not substitute our decision for that of the trial judge and reverse only if the judge acted in an unreasonable or arbitrary manner. In re T.D.H., 971 S.W.2d at 610.

At the hearing on a request to transfer a juvenile to the TDCJ, the judge may consider: (i) the experiences and character of the juvenile before and after commitment to the TYC; (ii) the nature of the penal offense and the manner in which the offense was committed; (iii) the abilities of the juvenile to contribute to society; (iv) the protection of the victim of the offense or any member of the victim’s family; (v) the recommendations of the TYC and the prosecuting attorney; and (vi) the best interests of the juvenile and any other relevant factors. See Tex. Fam.Code Ann. § 54.11(k) (Vernon Supp.2004-05); In re R.G., 994 S.W.2d 309, 312 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). Evidence of each factor is not required, and the trial judge need not consider every factor in making his decision. In re R.G., 994 S.W.2d at 312. The trial judge may assign different weights to the factors he considers, and he may consider unlisted but relevant factors. In re R.G., 994 S.W.2d at 312 (citing In the matter of C.L., Jr., 874 S.W.2d 880, 886 (Tex.App.-Austin 1994, no writ)).

At the transfer hearing, Leonard Cuco-lo, a TYC representative, testified that the TYC recommended J.L.C.’s transfer to the TDCJ for several reasons. J.L.C. was initially sent to the Marlin Assessment Center, then assigned to the San Saba State School. Although Cucolo testified J.L.C. had done very well academically, he characterized J.C. as doing “poorly” in his socialization progress and rehabilitation treatment. Cucolo stated J.L.C.-had 347 documented incidents of misconduct during the 42 months he had been at the TYC and had been placed in the security unit at San Saba on 75 occasions. The misconduct included general disruptipn, failure to follow staff instructions, aggressive behavior to staff and students, assault of students, and five “gang-related” incidents. Cucolo also testified about J.L.C.’s “risk factors associated with his risk to reoffend.” Specifically, Cucolo noted that, in an psychological evaluation performed in January 2004 and admitted into evidence, J.L.C. admitted to “criminal conduct” that he had engaged in before his commitment to the TYC, including abusing drugs and alcohol, committing various acts of burglary, participating in drive-by shootings, possessing fire arms, and using knives and baseball bats in fights. J.C. indicated he started drinking alcohol on a daily basis at age thirteen, smoked marijuana daily since the age of ten or eleven, had used cocaine, and sold marijuana, cocaine, and methamphetamine on the street. Cucolo classified J.L.C.’s risk to reoffend as “significant” and “high.” He rated J.L.C.’s amenability for treatment as poor, citing two separate evaluations by two psychologists. Cucolo testified J.L.C.’s caseworker reported J.L.C. lacked “motivation in completing his individual case plan assignments,” tended “to blame others for his lack of progress,” and failed to “take responsibility for his lack of progress.” Cucolo concluded by stating that the TYC recommended J.L.C. be transferred to the TDCJ. J.L.C. testified and challenged the accuracy of Cuco-lo’s testimony. According to J.L.C., he was not given “the proper treatment that was supposed to be provided” to him, nor did he receive counseling for anything other than his chemical dependency. J.L.C. testified the staff máde fun of him and attributed many of the instances of “disruption” to his attempts to run away from the staff. He also testified that his caseworker laughed about the possibility of his being transferred to prison. J.L.C. stated he only assaulted one person and claimed it was self-defense when he was stabbed with a pencil. He denied assaulting others, calling Cucolo’s testimony “inaccurate.”

After reviewing the record, we cannot conclude the trial judge abused his discretion in transferring J.L.C. to the TDCJ. Cucolo’s testimony about the numerous incidents of misconduct and J.L.C.’s high risk of reoffending, along with the TYC’s recommendation for transfer, constitute evidence supportive of the trial judge’s decision. Although J.L.C. challenged the evidence, the trial judge was free to accept or reject J.L.C.’s testimony. We overrule J.L.C.’s sole issue.

We affirm the trial court’s order transferring J.L.C. from the TYC to the TDCJ to complete the remainder of his determinate seven-year sentence.


text:
    Stephen R. DUNN, Petitioner, v. KENTUCKY BAR ASSOCIATION and Character and Fitness Committee, Respondents.
    No. 2000-SC-0799-KB.
    Supreme Court of Kentucky.
    April 21, 2005.
    Peter L. Ostermiller, Louisville, Stephen R. Dunn, Providence, Counsel for Petitioner.
    Bruce K. Davis, Executive Director, Linda Gosnell, Chief Bar Counsel, Kentucky Bar Association, Frankfort, Bonnie C. Kittinger, Director and General Counsel, Kentucky Office of Bar Admissions, Lexington, Counsel for Respondents.
   OPINION AND ORDER

Steven R. Dunn, of Providence, Kentucky was admitted to practice law in the Commonwealth of Kentucky on October 3, 1979. Seeking reinstatement from disciplinary suspension, he moves this Court to rule that he has not been suspended for a period exceeding five years thereby alleviating him of the test requirements of SCR 3.510(4). He asks that he be allowed to proceed under SCR 3.510(3) which does not require him to take an examination prior to reinstatement.

Dunn is the same attorney we have addressed in two cases, Kentucky Bar Association v. Dunn, 965 S.W.2d 158 (Ky.1998) (Dunn I) and Kentucky Bar Association v. Dunn, 90 S.W.3d 461 (Ky.2002) (Dunn II).

This Court rendered Dunn I, dated March 19, 1998. We suspended him for a period of six months probated for two years. Among the facts stated therein, Dunn had been arrested on June 13, 1996 and initially charged with four class D felony counts of first-degree wanton endangerment. A police officer witnessed Dunn driving' on the wrong side of the road causing at least four other drivers to drive off the road to avoid collision. When the officer attempted to pull him over, Dunn sped up and drove about five miles before pulling into a driveway. In addition to the probated suspension, the order required that Dunn abstain from intoxicating drinks and attend the Alcoholics Anonymous meetings as he promised the Board of Governors that he would.

On September 30, 1998, Dunn was indicted in Hopkins Circuit Court for Assault, first degree. The facts underlying the indictment were based on an accident occurring due to a second offense DUI on March 10, 1997. This accident resulted in injuries to the driver of another vehicle struck by Dunn. Victim impact statements cited in Dunn II state that the tragic injuries sustained included crushed vertebrae, facial lacerations requiring plastic surgery, and loss of peripheral vision.

On August 30, 1999, he entered a guilty plea to second-degree assault, which automatically suspended him. SCR 3.166(1). In November 1999, he was sentenced to seven years imprisonment. In February 2000, his motion for shock probation was granted with the terms that he be placed on probation for five years, or until February of 2005.

On September 11, 2000, Dunn had applied to be reinstated. The reinstatement was not possible during that time because the Inquiry Commission had charges developing and pending regarding the second-degree assault. The KBA had placed the application in abeyance pending the resolution of the disciplinary charges.

In Dunn II, we addressed Dunn’s first application for reinstatement and held that the KBA was not estopped from seeking further charges stemming from the underlying facts and that a conviction for second-degree assault warranted suspension from the practice of law while he remained on criminal probation. We suspended him until his criminal probation for the second-degree assault ended, that is, until February 2005. Among the reasons we gave for the length of the suspension was that Dunn could be imprisoned again if he failed to comply with the terms of his probation. At no time since 1999, has this Court reinstated Dunn to the practice of law.

In sum, Dunn pleaded guilty to second-degree assault, incurring automatic suspension on August 30, 1999, and in 2002, we imposed suspension to last until the end of his probation, February 2005. This Court has not yet reinstated Dunn to the practice of law after his automatic suspension incurred on August 30,1999.

As it stands now, the Character and Fitness Committee has approved Dunn’s application for reinstatement subject to the conditions imposed in SCR 3.510(4). SCR 3.510 governs the procedural requirements of reinstatement from disciplinary suspension. Section 4 pertains to lawyers whose suspension has prevailed for longer than five years and requires among other things, that the applicant successfully complete an examination administered by the Bar Examiners in accordance with SCR 3.500(3). Dunn argues that his suspension has not prevailed for longer than five years at the time of his application for reinstatement. He contends that SCR 3.510(3) should govern his reinstatement, that is, without examination. We disagree.

Among his contentions, Dunn cites SCR 3.510 as acting from the time of suspension until the time of application for reinstatement. For his purposes, he argues that his application for reinstatement dated September 11, 2000 is the relevant end date to be considered for purposes of SCR 3.510. The status of that application was discussed in Dunn II,

“On May 3, 2001, a hearing was held before the Character and Fitness Committee (Committee) regarding the Respondent’s reinstatement application. During the hearing, procedural questions arose regarding Respondent’s felony guilty plea, and the Committee placed the reinstatement application in abeyance.”

90 S.W.3d, at 462. Dunn argued that the KBA could not pursue the further disciplinary action because of the punishment already rendered by this Court in Dunn I. We disagreed with his arguments there, and we reaffirm that ruling here. The application filed in 2000 was untimely.

Dunn’s suspension began the day after he incurred automatic suspension on August 30, 1999. The version of SCR 3.166 applicable in 1999, reads, “Any member of the Kentucky Bar Association who pleads guilty ... of a felony as defined in KRS 500.080 shall be automatically suspended from the practice of law in this Commonwealth. [...] The suspension under this rule shall remain in effect until dissolved or superseded by order of the Court.” Only two options are available for escape from suspension by SCR 3.166: an order dissolving the suspension or an order superseding that suspension with an imposed disciplinary suspension.

In Dunn II, this Court superseded the automatic suspension by suspending Dunn for a period of time to run concurrent to his criminal probation, which at that time was until February 2005. The length of the suspension was not stated as a fixed term of time. Examples of a fixed term suspension would be 180 days, two years, or five years. Instead, this Court suspended Dunn for as long as his criminal probation because at any time during that probation, Dunn was in jeopardy of being sent back to jail. Consequently, the suspension was set for a period of time longer than five years, beginning the day after August 30,1999 until February 2005.

Dunn’s second argument is that the automatic suspension is not a disciplinary suspension. This argument is without merit. An automatic suspension pursuant to SCR 3.166 is clearly a disciplinary suspension because it is based on misconduct of the attorney. The automatic suspension is a result of a conviction for commission of a felony. It is counted as part of the total time used to determine how long the suspension has prevailed for the purposes of SCR 3.510.

We are cognizant of Dunn’s argument that the time of application for reinstatement should govern which length of time is used for procedure under SCR 3.510. However, that argument has no merit. The earliest time for application for reinstatement is provided in SCR 3.510(5) as ninety days prior to the end of the suspension. Subsection (5) therefore contemplates a fixed date or term of suspension towards which the operation of the other subsections work. For instance, under Dunn’s argument, a lawyer suspended for 240 days cannot apply for reinstatement at day 150 and expect SCR 3.510(2) to apply. SCR 3.510(2) applies to suspensions prevailing less than 180 days but the lawyer has a 240-day suspension. The application date is therefore irrelevant to the length of suspension unless it is late.

Under SCR 3.510, the date of the application for reinstatement only becomes a factor when the application is delayed longer than the suspension. Late or delayed applications cut the other way because they lengthen the suspension. If a lawyer suspended for three years is delinquent in the requirements of SCR 3.510(1) and does not meet those requirements until six years later, the delay will change the rules applicable to the reinstatement. SCR 3.510(3) would normally apply to the reinstatement of a lawyer suspended for three years. However, if by delay in paying the bonds or costs of original proceedings, the lawyer’s suspension has persisted longer than 5 years, SCR 3.510(4) will control.

Because his suspension was to run concurrently with his criminal probation, the earliest time he could apply for reinstatement under the current SCR 3.510(5) would be anytime during the last ninety days. The end of Dunn’s suspension was stated in Dunn II to be the end of his criminal probation, which was February 2005. Under SCR 3.510(5), the earliest time for applying to be reinstated is November 2004. Even if the application date were relevant, this length of time is longer than five years. Under this scenario, Dunn’s suspension would persist longer than five years; thereby, SCR 3.510(4) would apply.

Dunn did not have a fixed term-of-days suspension, but rather one fixed on the end of criminal probation. His probation had a fixed end date, February 2005, but the wording of our suspension in Dunn II allowed the suspension to end earlier if the criminal probation was ended. Therefore, applying the rule to the expected date would show that the suspension was originally to persist longer than five years, August 1999 to February 2005. On September 13, 2003, the Hopkins Circuit Court terminated his criminal probation. Dunn sought reinstatement and on May 12, 2004, the Character and Fitness Committee recommended resumption of the practice of law. Finally, on September 7, 2004, the KBA Board of Governors adopted the recommendation and approved Dunn’s application for reinstatement. On October 16, 2004, Dunn was advised by letter that he must take and pass a written examination, as required by SCR 3.510(4), prior to having the application submitted to this Court.

Dunn’s suspension has prevailed for longer than five years. Accordingly, SCR 3.510(4) applies to this reinstatement procedure.

The motion is DENIED. The reinstatement application is governed by SCR 3.510(4) which requires the successful completion of a written examination prior to the submission of the application to this Court.

All concur.


author: LAMBERT, Chief Justice.

text:
    KENTUCKY BAR ASSOCIATION, CLE Commission Movant v. Peter C. BROWN Respondent
    No. 2004-SC-1035-KB.
    Supreme Court of Kentucky.
    April 21, 2005.

      Jams E. Clark, Counsel for KBA, CLE Commission, Kentucky Bar Association, Frankfort, Counsel for Movant.
    Peter Carson Brown, West Hartford, CT, Counsel for Respondent.
   OPINION AND ORDER

LAMBERT, Chief Justice.

Peter C. Brown failed to meet the minimum hours of continuing legal education as required by SCR 3.661(1). This failure was due to the lack of accreditation of a program produced by Insight Information Co. at which Brown received 13.75 unaccredited hours of continuing legal education, which would satisfy SCR 3.661(1).

Brown is a practicing attorney in another state. He received continuing legal education credit for the Insight program in the state in which he practices law. He was under the false impression that he would receive Kentucky credit for the Insight program. It was not until August 2004 that Brown received notification that the Insight program was rejected for accreditation by Kentucky. As soon as Brown was made aware of this problem he took immediate remedial steps. Specifically, Brown informed the Kentucky Bar Association (KBA) that he was not in compliance because the Insight program had not been accredited, requested a time extension, and has since received over fourteen hours of KBA accredited continuing legal education, enough to satisfy Kentucky requirements.

It is the responsibility of an attorney to ensure that all programs submitted for credit have received accreditation. The fact that Brown attended the Insight program is of no avail. Furthermore, his request for a non-hardship extension of time was received ten days after the deadline. Therefore, we agree with the KBA that Brown is not in compliance for the year ending June 30, 2004. However, we are also mindful that this is the first time Brown has failed to meet the required hours of continuing legal education; that he responded immediately once he learned of the problem; that he has been cooperative with the KBA; and that he obtained more than enough hours to satisfy his 2003-2004 continuing legal education requirements. These mitigating circumstances must be considered along with his non-compliance.

Upon the KBA’s motion, we find that Respondent has failed to show cause why he should not be sanctioned. Accordingly, for his non-compliance with the minimum CLE requirements of SCR 3.661(1) for the 2003-2004 educational year, it is hereby ORDERED as follows:

1) Respondent shall pay a fíne in the amount of seven hundred fifty dollars ($750.00)’ to the Kentucky Bar Association within twenty (20) days from the date of this Order;
2) CLE credits earned by Respondent in the current 2004-2005 educational year shall be applied back to deficiency for the 2003-2004 educational year; and
3) Respondent shall be precluded from obtaining a “non-hardship” time extension under SCR 3.667(2) for the educational year ending June 30, 2005, and for the educational year ending June 30, 2006.

All concur.

      . SCR 3.665(1).


text:
    Melissa HAGGARD, Movant v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2003-SC-000996-KB.
    Supreme Court of Kentucky.
    April 21, 2005.

      Peter L. Ostermiller, Louisville, Counsel for Movant.
    Bruce K. Davis, Executive Director, Linda Gosnell, Bar Counsel, Kentucky Bar Association, Frankfort, Bonnie Kittinger, Director and General Counsel, Kentucky Office of Bar Admissions, Lexington, Counsel for Respondent.
   OPINION AND ORDER

LAMBERT, Chief Justice.

Movant, Melissa Haggard, was temporarily suspended from the practice of law on August 4, 2001 by order of this Court entered on October 25, 2001. Haggard has filed an application for reinstatement pursuant to SCR 3.510, and the Board of Governors has recommended that Haggard be reinstated. For the following reasons, we grant Haggard’s application to the extent that she is granted conditional reinstatement to the practice of law in the Commonwealth of Kentucky.

When an attorney has been suspended from the practice of law, a three-part inquiry is made to determine whether the suspended attorney should be reinstated. First, we ask whether the attorney complied with the suspension order. Second, we inquire into whether the attorney “presently possesses sufficient professional capabilities and qualifications” to practice law. And finally, we ask whether the attorney is of “good moral character.” We discuss each of these three inquiries in the order in which they are listed above.

First, we agree with the Character and Fitness Committee, which conducted a hearing and issued thorough findings of fact, conclusions of law and a recommendation for conditional readmission, in that Haggard met all the requirements of the suspension order. Second, we agree with the Character and Fitness Committee’s findings that Haggard possesses professional capabilities and qualifications to serve the public as a lawyer. Also relevant to the second question is that Haggard is up to date with her continuing legal education requirements and has created and sustained a successful business that serves elderly people in need of health services.

The third and final inquiry is the most important of the three in determining whether a suspended attorney will be reinstated to practice law in this Commonwealth. It asks, in essence, whether the attorney is of “good moral character.” It is incumbent upon Haggard to prove that she meets this vital qualification. As we stated in In re Applewhite, one who moves for reinstatement must prove that he has “so rehabilitated himself that in spite of his past failings ... he [has] become worthy of trust and confidence and would be a credit and not a detriment to the profession of law.”

The Character and Fitness Committee found that Haggard has made significant positive changes subsequent to her being suspended from the practice of law. She has attended Alcoholics Anonymous and is involved in her church and various civic organizations. We also note that since she was suspended Haggard has what she reports is a solid marriage to a retired police officer and has participated in literacy fairs sponsored by the Louisville Police Department. As further evidence of her good moral character a representative of Northeast Christian Church has testified that Haggard sets a good moral example for the church’s children. Perhaps most importantly, though, is that Haggard founded a company called ElderCare Planning of Kentucky, LLC, which assists the elderly in obtaining specialized care. We believe, as does the Character and Fitness Committee, that Haggard has the moral rectitude necessary for an attorney in good standing, and, as such, that she has met the requirements for reinstatement to the practice of law in this Commonwealth.

However, the Board of Governors and the Character and Fitness Committee believe Haggard’s reinstatement should be conditional, as provided by SCR 2.042. We agree. To that end the Kentucky Bar Association and Haggard entered into a Supervision Agreement, which deals with monitoring abstaining from alcohol and drugs, contact between Haggard and her monitor, treatment for her alcoholism, and random drug screens. We hereby adopt that agreement, dated December 2, 2004, as the conditions upon which Haggard is reinstated to practice law.

Accordingly, the application of Melissa Haggard to be reinstated to the practice of law in the Commonwealth of Kentucky is granted, with the adoption of the conditions agreed upon by her and the KBA as set out in the above-referenced Supervision Agreement.

Ms. Haggard shall pay all costs incurred by this action, the amount of $1,160.38, for which execution may issue from this Court upon finality of this Order.

All concur.

      . Kentucky Bar Ass'n v. Haggard, 57 S.W.3d 300 (Ky.2001).

      . SCR 3.510(2).

      . See In re Cohen, 706 S.W.2d 832 (Ky.1986).

      . 401 S.W.2d 757, 758 (Ky.1965).