text:
    In the Matter of L. R. S.
    No. 17213.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 16, 1978.

      Patricia L. Altman, Rosenberg, for appellant.
    Fred Felcman, Asst. Dist. Atty., Richmond, for appellee.
   PEDEN, Justice.

L.R.S. appeals from an adjudication by the Juvenile Court of Fort Bend County declaring him to be a child who has engaged in delinquent conduct within the meaning of Section 51.03, Texas Family Code, and placing him in custody of the probation officer. Trial by jury was waived. No findings of fact or conclusions of law have been made. No exhibits have been brought forward. Absent the appellant’s written and oral confessions and the fruit of his oral confession, the evidence would not support the trial court’s judgment.

In early September of 1977, a school in Fort Bend County was burglarized. Rosenberg Police Officer Ted Waite, acting on information he had received, went to Lamar Junior High School in Rosenberg on September 21 to interview L.R.S. at the office of the principal, Mr. Winn. L.R.S., a student there, arrived at the principal’s office at 10:40. Officer Waite explained why he was there, read L.R.S. his rights, and interviewed him in Mr. Winn’s office. Mr. Winn was the only other person present. The officer says that L.R.S., then 13, was not then under arrest and was so advised. After interviewing L.R.S. for several minutes, Officer Waite explained to him that he was being taken to the Rosenberg Police Department where he would be detained. Mr. Winn told one of L.R.S.’s parents at 10:49 a. m. where he was being taken. The Rosenberg Police Department is not a designated detention facility for juveniles in Fort Bend County; the Fort Bend County jail in Richmond is. Officer Waite testified that the appellant was moved to the police station for further questioning. He said the procedure was routine because the juveniles have to be processed, reports have to be completed before the authorities can detain them, and the juvenile officer has to be notified. Officer Waite testified that he read L.R.S. his rights and turned the investigation over to the detective on duty, Paul McClellan. Detective McClellan testified that Officer Waite asked L.R.S. if he understood each of the rights.

Detective McClellan and Officer Waite then began questioning L.R.S., with no one else in the room. L.R.S. was asked if he had anything to do with the burglary, and as soon as he admitted having participated in it, Juvenile Officer Mary Phillips was called. This was at 11:36 a. m., some 23 minutes after their arrival at the police station. Detective McClellan testified that Officer Phillips was present in the room when the questioning was resumed. She said she was not present but that L.R.S.’s mother was there. It is unclear as to whether “there” means the police station in general or the room in which the questioning was conducted. In response to questioning, the appellant explained to them in detail how the burglary was committed. One of the stolen items was a radio that L.R.S. had given to another boy. Officer Phillips collected the radio from the home of the other boy, returned to the station, then went to her office.

After L.R.S. made his incriminating oral statement, Officer Waite took him to a magistrate, Justice of the Peace M. J. Ceick, “to get him his magistrate warning and to get him qualified.” At Judge Geick’s office, L.R.S. and the Judge were secured alone, and L.R.S. was told his rights. L.R.S. was then returned to the police station, his written statement was taken, and he was subsequently returned to the magistrate’s office. There, at approximately 1:50 p. m., after the magistrate had satisfied himself that L.R.S. was competent to make a confession, L.R.S. signed the written statement that had been taken at the Rosenberg Police Station.

L.R.S. complains in his first point of error of the admission into evidence of his extrajudicial oral statement and the fruit of it because those holding him in custody when the statement was made failed to comply with the provisions of Section 52.-02(a), Title 3, of the Texas Family Code. In Title 3, the legislature has detailed explicit statutory procedures for the arrest, trial, and disposition of juveniles accused of delinquent conduct. Section 52.02(a) of the Code, entitled “Release or Delivery to Court”, provides in pertinent part:

(a) A person taking a child into custody, without unnecessary delay and without first taking the child elsewhere, shall do one of the following:
(1) release the child to his parent, guardian, custodian, or other responsible adult upon that person’s promise to bring the child before the juvenile court when requested by the court;
(2) bring the child before the office or official designated by the juvenile court;
(3) bring the child to a detention facility designated by the juvenile court;

As has been noted, after L.R.S. was taken into custody, he was transported to the Rosenberg Police Station, and it is not a “detention facility designated by the juvenile court”. Thus it is clear that he was taken “elsewhere” before he was delivered to the designated detention facility.

Officer Waite admitted that the Fort Bend County Jail is the designated detention facility. Juvenile Officer Phillips stated that she was not authorized to release L.R.S to his parents while he was being detained at the Rosenberg Police Station but that she could have him released from the Fort Bend County Jail.

The State maintains that L.R.S. was taken to the Rosenberg Police Station to facilitate the completion of necessary paper work. To support its position, the State relies on this law review commentary on Section 52.02(a):

Subsection (a) requires the law enforcement officer taking a child into custody immediately to dispose of the child’s case in one of five authorized ways. It prohibits the detention of the child for purposes other than to make the decision of what to do with him. To the extent authorized by the juvenile court under paragraph (2), law-enforcement officers taking a child into custody may take him to the police station to do the paper work on the case. Dawson, “Commentary on Title 3, Texas Family Code Symposium” 5 Texas Tech L.R. 509, 541 (1974). (emphasis supplied)

Some authorities have, in keeping with Section 52.02, secured a juvenile court order designating police headquarters as an appropriate place for taking a juvenile after arrest. See Steele, “Criminal Law and Procedure”, 32 Southwestern L.J. 427, 447 (1978). There is no evidence in our case that the Rosenberg Police Station has ever been designated by the juvenile court as an office where a child may properly be taken. There was a failure to comply with the requirements of Section 52.02(a) of the Texas Family Code. Section 54.03(e), Title 3, of the Code states:

An extrajudicial statement which was obtained without fulfilling the requirements of this title or of the constitution of this state or the United States, may not be used in an adjudication hearing .. .

The oral confession that led to the recovery of the radio was inadmissible. In the Matter of D. M. G. H., 553 S.W.2d 827 (Tex.Civ.App.1977, no writ). The radio was the fruit of the tainted oral confession and is likewise inadmissible. See Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1962).

In point of Error 4, appellant maintains that the court erred in admitting his extrajudicial written statement where the evidence showed that the magistrate before whom he signed it was unaware of the “totality of the circumstances” underlying the making of the written statement and thus was unaware that the voluntariness of the written statement was tainted by the way the prior oral statement was taken. The State counters with the argument that the written statement was made admissible by the totality of the circumstances, which were the magistrate’s warning the appellant, talking to the appellant without anyone else present and receiving information about his background, certifying the juvenile competent to give a statement, inquiring briefly into the circumstances of appellant’s arrest, and receiving a written statement shortly after the appellant’s again being given his Miranda warning.

It is possible for an accused to first make an inadmissible statement and to later make an admissible one.

Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantage of having confessed. He can never get the cat back in the bag ... In such a sense, a later confession always may be looked upon as a fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed. United States v. Bayer, 331 U.S. 532, 540-41, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947)

In many cases dealing with a tainted confession and its fruit, the statement was found to be tainted by an officer’s failure to give the Miranda warning, but in our case L.R.S. was given the appropriate warning; it was his illegal detention at the police station that rendered the oral confession inadmissible. Thus there is not only a Fifth Amendment problem present but a Fourth Amendment one as well. L.R.S.’s situation is somewhat similar to that of the accused in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), although in that case the accused had been arrested without probable cause and without a warrant. While under arrest, he made two in-custody inculpatory statements after having been given the Miranda warnings. These statements led to his indictment for murder and subsequent conviction. The Supreme Court of Illinois, recognizing that the accused’s arrest was illegal, held that the statements were admissible on the ground that the giving of the Miranda warnings broke the causal connection between the illegal arrest and the statements. The United States Supreme Court reversed, stating:

[E]ven if the statements in this case were found to be voluntary under the Fifth Amendment, the Fourth Amendment issue remains. In order for the causal chain, between illegal arrest and the statements made subsequent thereto, to be broken, [sic] Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint.’ 371 U.S. at 486, 83 S.Ct. at 416. Wong Sun thus mandates consideration of a statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment.
If Miranda warnings by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted.
422 U.S. at 601, 95 S.Ct. at 2261.

The Court held that the question of whether a confession is the product of free will under Wong Sun, supra, must be decided on the facts of each case. Factors to be considered when determining whether the confession was obtained by exploitation of an illegal arrest (or detention) include not only the Miranda warnings but also the time elapsed since the arrest or detention, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Since Brown’s statement was separated from his illegal arrest by less than two hours and there was no intervening event of significance, both statements were held inadmissible with the second statement being the fruit of the first. 422 U.S. at 604-605, 95 S.Ct. at 2262.

As to the time lapse in our case, L.R.S. was taken to the police station at 10:50 a. m. and orally confessed shortly thereafter. He was then transported to the magistrate, Section 51.09(b)(1) procedures were followed, and a written statement was obtained. The time span from arrest to final written statement was only three hours. The intervening circumstance was the magistrate’s additional warning and compliance with Section 51.09(b)(1) procedures. The significance of these intervening events is substantially weakened by the fact that the magistrate was unaware that L.R.S. had been in the custody of the officers since approximately 10:30 a. m. and had already made an oral statement.

In R. C. S. v. State of Texas, 546 S.W.2d 939 (Tex.Civ.App.1977, no writ) the juvenile involved gave the officers a written confession on April 10. He was then placed in the juvenile detention center. The district attorney advised the police that the statement was obtained in violation of Section 51.-09(b)(1) of the Texas Family Code. Consequently on April 12, the juvenile was taken from his place of confinement to the office of the magistrate where the warnings and procedures sublined by Section 51.09(b)(1) were carried out. In a well-written opinion, the San Antonio Court held the second statement inadmissible, stating at pages 947-948:

. The impact of a warning, given after the first incriminating statement has been made is much weaker than it would have been absent a prior confession, for one cannot be reasonably expected to persist in the denial of that which he has already admitted. Although the legislature has determined that the solemnity of a warning given by a judicial officer is more efficacious, in the case of a child, than one given by a policeman, even a warning by a magistrate, and a determination by the magistrate that the confession is voluntary, is of questionable value when the magistrate’s investigation is made in the absence of all knowledge of a prior illegal statement which places the child at a psychological disadvantage in the subsequent interrogation. Under such circumstances, the admonitions and counsel of the magistrate are unlikely to convert spiritless despair to alert diligence in a child whose secret is already ‘out of the bag’.

The final factor to be considered is the purpose and flagrancy of the official misconduct. Although he said it was the usual routine, Officer Waite seems to have been aware that he was not proceeding in accordance with the Family Code procedures when he took L.R.S. to the police station for further questioning.

In this case, the defendant did not have a sufficient cooling-off period after his illegal detention to reflect and then give an admissible statement. See United States v. Bayer, supra; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 1079 (1954). Furthermore, the magistrate in making his decision as to whether the written confession had been given voluntarily, was unaware of what had occurred prior to the appellant’s being brought to his office. The written statement was tainted by the prior inadmissible oral confession and was, therefore, also inadmissible.

Having sustained the appellant’s first and fourth points, we need not rule on his second and third ones.

The judgment of the trial court is reversed and rendered in favor of L.R.S.


source: Caselaw Access Project

author: DICKENSON, Justice.

license: Public Domain

text:
    Royce L. McPHAIL, Appellant, v. TEXAS ARCHITECTURAL AGGREGATE, INC., et al, Appellee.
    No. 5153.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 16, 1978.

      Rod V. Steinburg, Helm, Pletcher, Hogan & Burrow, Houston, David M. Williams, San Saba, for appellant.
    Gary R. Price and W. Stephen Ellis, Brownwood, for appellee.
   DICKENSON, Justice.

The issue is whether an option to purchase land is void. Legal title to two tracts of land is in the Veteran’s Land Board, and the lands in question are being purchased by two veterans who granted an option to a third party. The trial court held the option void. Based upon our reading of Article 5421m, Section 17, and Section 161.224 of the Texas Natural Resources Code, we will modify the judgment to provide that the option is not void but that it was unenforceable until three years after the date of the veterans’ purchase of the property from the Veteran’s Land Board and that it was not thereafter, and is not presently, enforceable without the approval of the sale by the Veteran’s Land Board.

W. E. Curtis and Billy Curtis (veterans) purchased adjacent tracts of land from the Veteran’s Land Board (Board) on November 5, 1972. The veterans joined in the execution of one lease agreement (with an option to purchase) covering both tracts, in favor of Royce L. McPhail on May 1, 1974. The Board neither joined in, nor approved of, the execution of this lease agreement.

Each of the veterans and their wives executed separate coal mining leases to Texas Architectural Aggregate, Inc. (mining lessee) in 1975. These mining leases were approved by the Veteran’s Land Board. The mining lessee attempted to exercise its right to explore for coal, and McPhail objected. Litigation resulted between the mining lessee and McPhail. The veterans and the Board later became plaintiffs, along with the mining lessee, in the lawsuit when amended pleadings were filed to assert a cause of action against McPhail for trespass to try title, for a declaratory judgment, and for an injunction. After a nonjury trial, judgment was rendered for plaintiffs, holding McPhail’s option to purchase the land void. He appeals. We will modify the judgment and affirm.

The first point of error claims the trial court erred in declaring the purchase option void since the suit was in trespass to try title. We disagree.

Frost v. Mischer, 463 S.W.2d 166 (Tex.1971), cites Article 7364, Tex.Rev.Civ.Stat. Ann. (1960), which provides that: “The method of trying titles to lands, tenements or other real property shall be by action of trespass to try title.” Frost holds that a suit for injunction may not be substituted for an action in trespass to try title.

Rule 48, T.R.C.P., provides that a party may make two or more claims or defenses in the alternative, regardless of consistency and whether based upon legal or equitable grounds or both.

The second point of error contends that the trial court did not have jurisdiction to enter a judgment declaring the option to be void, that such decision was merely advisory, and that there was no justiciable controversy between the parties. We disagree. We hold that the Declaratory Judgments Act authorized the trial court to declare the rights of the parties and to construe the contract between the veterans and McPhail.

McPhail contends that the judgment declaring the option void is based upon the hypothetical proposition that the option will be exercised. McPhail relies upon Reuter v. Cordes-Hendreks Coiffures, Inc., 422 S.W.2d 193 (Tex.Civ.App.—Houston (14th Dist.) 1967, no writ). That case is distinguishable. The parties in that case had signed an agreement with a covenant against competition. The plaintiffs in that case were not happy with the agreement which they had made, and they thought it was unreasonable; however, the record in that case did not reflect any present intention on the part of those plaintiffs to engage in the practice of cosmetology within the prohibited area. The court stated: “A mere difference of opinion, not involving the assertion of adverse interests, is not sufficient to support an action for declaratory judgment.” The opinion in Reuter states that the record presents no “actual, genuine, live, controversy” and that a declaratory judgment “would be in the nature of an advisory opinion that might or might not affect the future relations of the parties.” In the case at hand, there is more than a mere difference of opinion. There is an actual, genuine, live controversy between the parties as to their rights under the lease agreement which provided for the option to purchase.

This case is not like a lease agreement with a “right of first refusal” in the event of a sale of the leased property. As this court stated in Henderson v. Nitschke, 470 S.W.2d 410 (Tex.Civ.App.—Eastland 1971, writ ref’d n. r. e.), and again in A. P. Simons Company v. Julian, 531 S.W.2d 451 (Tex.Civ.App.—Eastland 1975, no writ):

So under a lease provision for a first option to purchase the premises at such price as might be agreed on between the lessor and any bona fide purchaser, prior to the making of an actual agreement as to price between the lessor and a prospective purchaser, the lessee has no accrued right of purchase, but only a promise thereof which for fruition is wholly dependent on a future event which might never occur. (Emphasis added)

McPhail’s lease with the veterans purports to give him the option to purchase the lands “at any time” during the five-year lease. The option is not dependent upon a future event. It is a present right which McPhail is claiming, even though he has not attempted to exercise the option. We recognize the rule that there must be a justiciable controversy between the parties before a declaratory judgment action will lie. Firemen’s Insurance Company of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968). We hold that the record in this case presents a justiciable controversy and that the trial court did not err in ruling upon the validity of the option.

The third point of error claims that the trial court erred in declaring the purchase option void since the type of option in this case is not prohibited by the act. We agree that the option is not void. Appellees rely upon Section 161.227 of the Code, which prohibits the veterans from granting a lease which contains “a provision for option or renewal of the lease or re-lease of the property for any term . . . .” It seems clear to us that this prohibits an option for a new lease or renewal of the existing lease, but it does not appear to specifically prohibit an option to purchase. We hold that Section 161.227 of the Code does not make the purchase option void.

Section 161.224, supra, note 1, specifically provides that property purchased from the Veteran’s Land Board may not be “transferred, sold, or conveyed in whole or part until the original veteran purchaser has enjoyed possession for a period of three years from the date of purchase of the property . . . The granting of the option from the two veterans to McPhail did not violate this provision because the option did not pass any title. It did not constitute a transfer, sale or conveyance of any interest in the property. Roberts v. Armstrong, 231 S.W. 371 (Tex.Comm.App.1921, judgment adopted); Knox v. Brown, 277 S.W. 91 (Tex.Comm.App.1925, judgment adopted); Lusher v. First Nat. Bank of Fort Worth, 260 S.W.2d 621 (Tex.Civ.App.—Fort Worth 1953, writ writ ref’d n. r. e.); Click v. Seale, 519 S.W.2d 913 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.).

Appellees rely on the case of Venable v. Patti, 490 S.W.2d 194 (Tex.Civ.App.—Texarkana 1973, writ ref’d n. r. e.). In that case, the veteran attempted to sell and convey the land during the three-year period after he purchased the property from the Veteran’s Land Board. The opinion states:

The length of Patti’s possession is decisive because Article 5421m, Section 17 regulates and circumscribes resale of land purchased by a veteran, such as Patti, under the Veteran’s Land Program. . The statute expresses public policy and constitutes a limitation on the right and power of a purchaser, such as Frank Patti, to alien or transfer the property purchased from the Board for a three-year period after date of the purchase.
the agreement to sell was in direct contravention of Article 5421m and the public policy expressed therein and is not enforceable ....

In this case, the veterans did not actually sell or convey the property during the three-year period following their purchase from the Veteran’s Land Board. They only gave McPhail the option to purchase the property, and the option is subject to compliance with the requirements of Section 161.224 of the Texas Natural Resources Code, supra, note 1. Even though the contract between the parties did not refer to this statute, it is clear that any sale by the veterans must comply with it. McPhail cannot exercise his option to purchase without securing approval of the Veteran’s Land Board, but the option is not void. It was unenforceable during the three-year period, and it is not presently enforceable unless the Veteran’s Land Board gives its approval to the sale.

Bellah v. First National Bank of Hereford, 478 S.W.2d 636 (Tex.Civ.App.—Amarillo), writ ref’d n. r. e. per curiam, 484 S.W .2d 558 (Tex.1972), concerned land purchased by a veteran and then mortgaged. The court of civil appeals stated:

Although the legal title to the land is vested in the State, the purchaser, upon execution of the contract of sale and purchase and entry into possession, becomes vested with equitable title. It is axiomatic that any ownership in property that may be transferred, sold or conveyed may also be mortgaged or conveyed in trust absent some legal inhibition. Bourn v. Robinson, 49 Tex.Civ.App. 157, 107 S.W. 873 (1908, no writ); Clark v. Altizer, 145 S.W. 1041 (Tex.Civ.App.—Austin 1912, writ ref’d). The statutory enactment not only does not inhibit the impression of a voluntary lien on the purchaser’s contractual interest, but specifically provides that the purchaser may, except under certain conditions not shown to be determinative here, transfer, sell or convey his contractual interest. It has been held that the purchaser’s contractual interest in land purchased under the Veterans’ Land Program is subject to execution and sale for private debts. Tex. Atty.Gen.Op.No. S-183 (1955). A fortio-ri, the contractual interest is subject to liens voluntarily placed thereon. We hold, therefore, that a purchaser of lands under the Veterans’ Land Program, if otherwise in compliance with the statutory requirements and the rules and regulations of the Veterans’ Land Board, may voluntarily impress upon his contractual interest therein a lien subject to foreclosure and sale when default occurs in the obligation for which the contractual interest is pledged .

The Supreme Court’s per curiam opinion in Bellah states that “we do not pass upon the question of whether petitioner’s beneficial interest in the three tracts in question under the contracts of purchase and sale with the Veteran’s Land Board was subject to the voluntary lien which he created.” In Bellah, the veteran had made a conveyance in trust to secure his debt. In this case, there was no conveyance to McPhail.

The fourth point of error claims that the equitable “clean hands” doctrine bars the appellees from seeking a declaration that the purchase option was void. This point of error is overruled. We note that the Veteran’s Land Board filed pleadings which prayed for the same relief requested by the veterans and the mining lessee. The record also supports the implied finding of the trial court that the veterans were not guilty of inequitable conduct in granting the disputed option. On an appeal from a nonjury trial where findings of fact and conclusions of law are neither requested nor filed, the decision of the trial court must be affirmed if it can be upheld on any legal theory which is supported by the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968).

The fifth point of error states that the trial court erred in declaring the purchase option void since it can be performed without violating any of the provisions of the Veteran’s Land Board Act, Article 5421m, supra, notes 1 and 5. We agree for the reasons stated in our discussion of the third point of error. The judgment will be modified as set forth below.

The sixth and seventh points of error assert in the alternative that the statute is unconstitutional if it invalidates the purchase option. We disagree. McPhail had constructive notice of the provisions contained in the contracts with the Veteran’s Land Board. Those provisions are quoted in footnote 2, supra. Enforcement of those provisions will not violate due process nor will such enforcement violate the equal protection clause of the United States Constitution.

That portion of the trial court’s judgment which reads as follows:

IT IS ORDERED, ADJUDGED AND DECREED, and the Court does hereby find, that the option to purchase the land and premises described herein as set forth in the Lease Agreement dated the 1st day of May, 1974, entered into by and between W. E. CURTIS, BILLY D. CURTIS and ROYCE L. McPHAIL, is null and void and of no force and effect,

is hereby modified to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED, and the Court does hereby find, that the option to purchase the land and premises described herein as set forth in the Lease Agreement dated the 1st day of May, 1974, entered into by and between W. E. CURTIS, BILLY D. CURTIS and ROYCE L. McPHAIL was unenforceable prior to November 5, 1975, and was not thereafter, and is not now, enforceable without the approval of the sale by the Veteran’s Land Board.

As modified, the judgment of the trial court is affirmed.

      . Texas Natural Resources Code § 161.224 (1978). “Time Limit on Transfer” reads as follows:
      (a) No property sold under this chapter may be transferred, sold, or conveyed in whole or part until the original veteran purchaser has enjoyed possession for a period of three years from the date of purchase of the property and complied with the terms and conditions of this chapter and rules of the board.
      (b) If the veteran purchaser dies or becomes financially incapacitated or if there is an involuntary transfer by court order or proceedings including bankruptcy, sheriff or trustee sale, or divorce, the property may be conveyed before the expiration of the three-year period by the purchaser or his heirs, administrators, or executors by complying with rules of the board and by securing the approval of the board.
      (c)After the three-year period, a purchaser may transfer, sell, or convey land purchased under this chapter at any time if all mature interest, principal, and taxes have been paid, the terms and conditions of this chapter and rules of the board have been met, and the approval of the board has been obtained.
      This Code was adopted by Senate Bill 1207 of the 65th Legislature, and its provisions became effective on September 1, 1977. The lawsuit was tried on September 27, 1977, and the judgment was signed on November 8, 1977. Section 15 of Senate Bill 1207 provided that: “This restatement of the law does not change the substantive law of this state, and . . it is the intent of the legislature that each provision of this code be interpreted to have the same meaning as the statutes from which it is derived.” Section 161.224 was derived from Section 17 of Article 5421m, Tex.Rev.Civ.Stat.Ann. (1962).

      . Each of the contracts were filed for record, and they contain the following language:

      7. Buyer understands that this Contract of Sale and Purchase can only be transferred with the approval of the Seller and only on forms and by following instructions furnished to him by the Seller and that the contract cannot be transferred, sold or conveyed until he shall have enjoyed possession for a period of three (3) years from the effective date hereof, after which period Buyer may transfer, sell or convey said property, subject to approval of the Seller; provided however as the only exceptions allowed by law, that the said property may be transferred, sold or conveyed prior to the expiration of said 3-year period in the event the Buyer dies or becomes incapacitated by reason of illness or accident and provided further, that in making any transfer, sale or conveyance of said property, the Buyer, as assign- or, may not reserve any interest therein. These provisions shall not be construed to prohibit Buyer from transferring, selling or conveying the property at any time upon payment in full of the entire indebtedness to Seller.

      10. When the entire indebtedness due by the Buyer under this contract is paid, Seller agrees to execute a deed, under its official seal, to the original purchaser of said land or to the last assignee whose assignment has been approved by the Seller.

      . The lease agreement provides in part:
      TO HAVE AND TO HOLD the aforesaid premises hereby demised unto Party of the Second Part from the 1st day of May, 1974, until the 30th day of April, 1979, said Lease being for a term of five (5) years.

        Payment for said Lease shall be in the amount of Four and no/100 ($4.00) Dollars per acre per year on 266 acres, as follows:
      (1) Payment in the amount of Two Thousand One Hundred Twenty Eight and no/100 ($2,128.00) Dollars, which shall represent rental payments for the first and fifth year of said Lease;
      (2) Payment in the amount of One Thousand Sixty Four and no/100 ($1,064.00) Dollars, on the 1st day of May, 1975;
      (3) Payment in the amount of One Thousand Sixty Four and no/100 ($1,064.00) Dollars, on the 1st day of May, 1976; and
      (4) Payment in the amount of One Thousand Sixty Four and no/100 ($1,064.00) Dollars, on the 1st day of May, 1977.

        However, it is further agreed by and between the parties hereto that during said five-year lease period, Party of the Second Part may at any time exercise an option to purchase said premises under the following terms and conditions: (emphasis added)
      (1) The purchase price shall be in the sum of $250.00 per acre on the said 266.7 acre tract.
      (2) Upon tender and payment by Party of the Second Part of the cash sum of $66,675.00 to Party of the First Part, Party of the First Part shall execute and deliver to Party of the Second Part a Warranty Deed conveying the above described premises, save and except a reservation of the minerals .

      . Article 2524-1. Uniform Declaratory Judgments Act reads in part as follows:
      Section 1. Courts or record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.
      Sec. 2. Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a Statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, Statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
      Sec. 3. A contract may be construed either before or after there has been a breach thereof.

      Sec. 12. This Act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered.

      . Article 5421m, Tex.Rev.Civ.Stat.Ann. (1962), is the Veteran’s Land Board Act. Section 17 of the Act contained the provisions relating to contracts of sale and transfers. As noted in footnote 1, supra, this Act was repealed by the Texas Natural Resources Code on September 1, 1977. Section 161.224 of the Code has been quoted at length in footnote 1. Section 161.227 of the Code was also taken from Section 17 of the Act, and it now reads as follows:
      (a) No land purchased under this chapter may be leased by the purchaser for a term of more than 10 years except for oil, gas, and other minerals and as long after 10 years as minerals are produced from the land in commercial quantities.
      (b) No lease may contain a provision for option or renewal of the lease or re-lease of the property for any term, and the taking of an option, renewal, or re-lease agreement in a separate instrument to take effect in the future is prohibited. A lease or instrument that contains an option, renewal, or re-lease agreement in violation of this section is expressly declared to be void.

      . Amendment XIV, United States Constitution and Article 1, Section 19, Constitution of the State of Texas 1876.

      . Amendment XIV, United States Constitution.


author: BROWN, Justice.

text:
    H. Jack OAKES d/b/a Jack Oakes & Associates, Appellant, v. GUARANTEE INSURANCE COMPANY, Appellee.
    No. 5212.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 16, 1978.
    Rehearing Denied Dec. 7, 1978.

      H. C. McCracken, Jr., McCracken, Shields & Taylor, Carrollton, for appellant.
    John R. Henderson and Robert W. Coleman, Meyers, Miller & Middleton, Dallas, for appellee.
   BROWN, Justice.

Guarantee Insurance Company sought recovery of premiums due from its agent, H. Jack Oakes d/b/a Jack Oakes and Associates. Based on jury findings that Oakes failed to remit $6,600 of premiums, judgment was entered for Guarantee in the amount of $7,600 which includes $1,000 stipulated as reasonable attorney’s fees. Oakes appeals. We affirm.

The thrust of Oakes’ position is that the arrangement between the parties is illegal and their contract unenforceable under Articles 21.01 and 21.02 of the Texas Insurance Code. Further, Oakes contends that the evidence would only support a judgment of $2,673.

Only two issues were submitted to the jury:

SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that H. JACK OAKES, d/b/a JACK OAKES & ASSOCIATES, failed to remit to GUARANTEE INSURANCE COMPANY premiums, less commissions, on insurance policies issued by . GUARANTEE INSURANCE COMPANY at the instance of H. JACK OAKES?
Answer “We do” or “We do not”.
ANSWER: We do
IF YOU HAVE ANSWERED THE FOREGOING SPECIAL ISSUE NO. 1 “WE DO”, THEN ANSWER THE FOLLOWING SPECIAL ISSUE NO. 2. OTHERWISE, DO NOT ANSWER SPECIAL ISSUE NO. 2.
SPECIAL ISSUE NO. 2
What sum of money premiums, less commissions, has H. JACK OAKES, d/b/a JACK OAKES & ASSOCIATES failed to pay to GUARANTEE INSURANCE COMPANY?
Answer in dollars, if any, and cents, if any, as you find.
ANSWER: $6.600

These issues were submitted without objection and there was no request for additional issues.

Oakes was a licensed insurance agent in the state. He had approximately 82 policies of liability insurance, issued by Aetna Casualty and Surety Insurance Company, on drivers who drove for a company known as C & H Transportation Company. When Aetna decided to withdraw its coverage on the drivers, Oakes contacted Guarantee requesting it to appoint him as an agent and accept the liability coverage for the drivers. On September 13, 1974, Oakes and Guarantee entered into a local recording agent’s agreement. Under the terms of the agreement, Oakes was entitled to a fifteen percent commission on any insurance placed with Guarantee. He was responsible for collecting the premiums and remitting them to Guarantee less his commission. The coverage afforded by the Guarantee policies went into effect October 1, 1974, and Guarantee in this case sued for premiums under the policies.

At the time the agreement was signed, Oakes was under investigation by the state insurance board due to technical violations which also involved Aetna. The investigation resulted in Oakes having his certificate of authority suspended from November 11, 1974, until February, 1975. Oakes did not inform Guarantee of either the investigation or of the suspension of his license until a few days after November 11, 1974. He contends that because the agency agreement had not been approved by the insurance commission, it was null, void and of no effect and unenforceable by either party. In support of his position, Oakes cites cases which stand for the proposition that an unlicensed agent may not recover his earned commissions.

It is uncontroverted that Oakes was not appointed by the State Board of Insurance to represent Guarantee as an agent as required by Article 21.01, Texas Insurance Code, Tex.Rev.Civ.Stat.Ann., which reads:

It shall not be lawful for any person to act within this State, as agent or otherwise, in soliciting or receiving applications for insurance of any kind whatever, or in any manner to aid in the transaction of the business of any insurance company incorporated in this State, or out of it, without first procuring a certificate of authority from the Board.

The court in Perkins v. Lambert, 325 S.W.2d 436 (Tex.Civ.App.—Austin 1959, writ disnTd) held void and unenforceable a contract between a licensed insurance salesman for Southland Life Insurance Company and local agency manager for Fidelity Union Life Insurance Company whereby Lambert was to receive a commission for causing a holder of a term policy in Fidelity to convert it into permanent insurance for the reason that Lambert had not complied with Article 21.01 in that he had not received authority from the State Board of Insurance to represent Fidelity.

The court in Armstrong v. Tidelands Life Insurance Company, 466 S.W.2d 407 (Tex.Civ.App.—Corpus Christi 1971, no writ) wherein an agent sought to recover commissions said:

It is uncontroverted that although Armstrong was licensed generally as a life insurance agent in Texas during the existence of his contract with Tidelands, he was not appointed by the State Board of Insurance to represent Tidelands as an insurance agent. The acts which Armstrong alleges he performed and for which compensation is sought are those specifically prohibited by Article 572 of the Texas Penal Code and Article 21.01 of the Texas Insurance Code unless a Certificate of Authority is first procured from the Insurance Board. The damages claimed by Armstrong are based upon commissions he allegedly earned in reliance on the asserted representation that Tidelands would procure the Certificate of Authority.

The court held:

Article 21.01 of the Texas Insurance Code imposes the obligation to procure a Certificate of Authority from the Board of Insurance upon the person purporting to act as agent. .

and the court further stated:

It thus appears that Armstrong, as a matter of law, could not recover against Tidelands on the pleadings submitted to the court on the motion for summary judgment for the reason that (1) the acts for which he claims compensation were illegal without his first having procured the Certificate of Authority from the Board of Insurance as required by Article 21.01, Texas Insurance Code, and Article 572 of the Texas Penal Code and (2) because, as a matter of law, Armstrong cannot rely on any alleged misrepresentation by Tidelands to procure the license when Article 21.01 of the Texas Insurance Code and Article 572 of the Texas Penal Code impose the obligation on Armstrong to procure the Certificate of Authority prior to undertaking the services for which he now claims compensation.

The principle of law urged by Oakes that courts will not lend their aid in enforcing illegal contracts is well recognized. The court in Miller v. Long-Bell Lumber Co., 148 Tex. 160, 222 S.W.2d 244 (1949) said:

As said in the early case of Heirs of Hunt v. Heirs of Robinson, 1846, 1 Tex. 748, 759: “It is believed to be a rule of universal application that to undertake to do an act forbidden by the law of the place where it is to be done is an invalid agreement, and imposes no legal obligation.” The law in this respect has not varied in Texas down to the present, with some distinctions and refinements, of course, in its application to varying factual situations. For example, see American Nat. Ins. Co. v. Tabor, 111 Tex. 155, 230 S.W. 397. . . .

The rule against the enforcement of illegal contracts is subject to an exception as stated by the court in Graham v. Dean, 144 Tex. 61, 188 S.W.2d 372 (1945):

The rule that a court will not entertain a suit growing out of an illegal transaction is not always applicable where the parties are not in pari delicto. 17 C.J.S. Contracts § 274, p. 660; 12 Am.Jur. 734; 10 Tex.Jur. 239; American National Insurance Co. v. Tabor, 111 Tex. 155, 230 S.W. 397. This is especially true where the illegality of the transaction depended on the existence of peculiar facts which were known to the defendant but unknown to plaintiff, and plaintiff had no intention of violating the law. 17 C.J.S. Contracts § 291, p. 679; 13 C.J. 517; 12 Am.Jur. 648; 10 Tex.Jur. 195. In 17 C.J.S. Contracts p. 680, § 292, it is said:
“Thus, where a person sues for services rendered another in an occupation which is illegal, unless the employer is duly licensed to carry it on, which he is not, such person may recover unless he knew that the employer had no license, for while he is bound to know that the employer must have a license to make the business legal, his mistake as to his having such license is a mistake of fact and not of law.”

We must resolve whether Oakes and Guarantee are in pari delicto. Article 21.01 imposes the obligation to procure a license upon the person to act as agent. Armstrong v. Tidelands Life Insurance Company, supra. Article 21.14(24), the penalty provision of Article 21.14, imposes a penalty on a person, firm or partnership who acts as a local recording agent before he has in force a license. There are no penalties directed to the company where the agent is unlicensed.

The court in American Nat. Ins. Co. v. Tabor, 111 Tex. 155, 230 S.W. 397 (1921) said:

We sanction the declaration of Judge Sel-den, quoted with approval in a later opinion of the New York Court of Appeals, that—
“It is safe to assume that whenever the statute imposes a penalty upon one party and none upon the other, they are not to be regarded as par delic-tum.” Tracy v. Talmage, 14 N.Y. 162, 67 Am.Dec. 145; Irwin v. Curie, 171 N.Y. 409, 64 N.E. 161, 58 L.R.A. 832.
It would not be in accord with either the public policy declared by the act wherein the statute is found or the ends of justice to permit insurance companies to issue discriminatory policies of life insurance and collect and retain the premiums thereon and to then refuse payment after the death of the insured.
The rule is established that a court of equity will not withhold relief where it is necessary in the interest of justice and of sound public policy to enforce a contract which is inhibited by statute, but is not declared void and is not otherwise open to attack, provided the parties are not in pari delicto, and he who is least culpable seeks relief. 1 Pomeroy’s Equity Jurisprudence (3d Ed.) § 403.

It would not be in the interest of justice to permit a recording agent to retain premiums due an insurance company for policies it had issued merely because the agent failed to obtain his certificate of authority.

We hold the parties are not in pari delicto and overrule Oakes’ first point of error.

Oakes contends there is no evidence, or alternatively, insufficient evidence to support the jury’s answer of $6,600.

In considering the no evidence point, we apply the rule as stated in Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex. 1974):

When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Langlotz v. Citizens Fidelity Insurance Company, 505 S.W.2d 249 (Tex.1974).

Courtier, senior vice-president of Guarantee, testified that the total net premium due on the policies, after Oakes deducted his fifteen percent commission, was $20,472.25. He testified that only $8,000 was received by Guarantee from Oakes. This statement was acknowledged by Oakes.

We hold that there is some evidence of probative force to support the jury finding. We have considered the entire record and hold such finding is not factually insufficient. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We have considered and overrule all points of error. The judgment is affirmed.


author: CLAYTON, Justice.

text:
    EASTEX CAMPER SALES, INC., Appellant, v. Joe E. LANCLOS et ux., Appellees.
    No. 8211.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 16, 1978.

      Clinton P. Hackney, Maurice Bresenhan, Jr., Bresenhan, Martin & Wingate, Houston, for appellant.
    Keith Griffin, Beaumont, for appellees.
   CLAYTON, Justice.

Plaintiffs filed this suit in Jefferson County against Eastex Camper Sales, Inc., Kings Highway Motor Homes, Inc., and Nationwide Financial Corporation, seeking damages under the Texas Deceptive Trade Practices Act arising from the purchase of a motor home purchased from Eastex Camper Sales, Inc. (hereinafter referred to as defendant) and manufactured by Kings Highway Motor Homes, Inc. Nationwide Financial Corporation was the purchaser of the retail installment sales contract. This defendant, Eastex, filed its plea of privilege to be sued in Harris County, the county of its residence. Plaintiffs filed their controverting plea seeking to sustain venue in Jefferson County under the provisions of Tex.Rev.Giv.Stat.Ann. art. 1995, subdiv. 3 (1964). The trial court overruled defendant’s plea of privilege from which order this appeal is taken. The other defendants did not file a plea of privilege.

There is no dispute as to the non-residency of Kings Highway Motor Homes, Inc., and the residency of Nationwide Financial Corporation is not of consequence in this appeal.

Plaintiffs purchased a motor home in Harris County from defendant. The motor home was manufactured by Kings Highway Motor Homes, Inc. After the purchase, several defects in the home appeared, and plaintiffs filed their suit against defendant, as seller, and Kings Highway Motor Homes, Inc., as manufacturer — such suit being based upon breach of warranty and misrepresentations — and sought damages, jointly and severally, against both defendants.

The trial court held that venue in Jefferson County was maintainable against this defendant under Tex.Rev.Civ.Stat.Ann. art. 1995, subdiv. 3 (1964), which provides that if one or all of several defendants reside without the State, or if their residence is unknown, suit may be brought in the county in which the plaintiff resides. However, this subdivision 3 does not mean that a resident defendant may be denied his privilege to be sued in his home county merely because one or more other defendants may reside outside the State. Graham v. Huff, 384 S.W.2d 904 (Tex.Civ.App.—Dallas 1964, no writ); Graham v. Ozuna, 275 S.W.2d 735 (Tex.Civ.App.—Galveston 1955, no writ).

Even if the venue facts under subdivision 3 are established, such subdivision will not hold venue against a plea of privilege asserted by a Texas resident not residing in the county of the suit unless it is shown that he is a necessary party to the suit under subdivision 29a of Tex.Rev.Civ. Stat.Ann. art. 1995. The plaintiff must show that the defendant urging his plea of privilege is a necessary party upon the cause of action as to which venue against the co-defendant has been established. Key v. Davis, 554 S.W.2d 60 (Tex.Civ.App.—Amarillo 1977, no writ); Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774 (1944); see also Loop Cold Storage Co. v. South Texas Packers, Inc., 491 S.W.2d 106 (Tex.1973).

A necessary party to a suit is one whose joinder is necessary to afford plaintiff full relief, which is obtainable only in the suit to which both defendants are parties. Miller & Miller Auctioneers, Inc. v. Hillcrest State Bank, 430 S.W.2d 61 (Tex.Civ.App.—Dallas 1968, no writ); Dina Pak Corp. v. May Aluminum, Inc., 417 S.W.2d 419 (Tex.Civ.App.—Corpus Christi 1967, no writ).

In our case, plaintiffs, having based their cause of action upon breach of warranty, could recover their full relief against Kings Highway Motor Homes, Inc., a co-defendant, in the absence of the joinder of defendant Eastex Camper Sales, Inc. All relief as prayed for could be obtained against the co-defendant. This being true, then defendant Eastex Camper Sales, Inc., would not be a necessary party under the authorities above cited. Defendant, not being a necessary party, is entitled to be sued in the place of its residence, and the order of the trial court in overruling the plea of privilege is in error.

The judgment of the trial court is reversed, and the cause is remanded to the trial court with instructions to sustain the plea of privilege of Eastex Camper Sales, Inc., and to transfer the plaintiffs’ cause of action against Eastex Camper Sales, Inc., to Harris County, Texas.

REVERSED and REMANDED with instructions.


author: PER CURIAM. PALMORE, Chief Justice,

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Donald M. HEAVRIN, Respondent.
    Supreme Court of Kentucky.
    Oct. 31, 1978.
    Rehearing Denied Jan. 3, 1979.
    Leslie G. Whitmer, Director, Michael M. Hooper, Kentucky Bar Ass'n, Frankfort, for complainant.
    Henry A. Triplett, Louisville, for respondent.
   PER CURIAM.

In this disciplinary proceeding the Kentucky Bar Association charged Donald M. Heavrin, a Louisville attorney and a member of the Kentucky Bar Association, with seven counts of unethical conduct calculated to bring the bench and bar of Kentucky into disrepute. A trial committee consisting of three members filed an opinion with one member of the committee filing a dissenting opinion recommending that the Board of Governors dismiss the charges because Heavrin alleged the Kentucky Bar Association had not proceeded properly under the provisions of former RAP 3.160. On July 16, 1977, the Board of Governors sent the case back to the trial committee to make recommendations on the merits. Then on January 2, 1978, the trial committee recommended dismissal of all charges by unanimous vote. Subsequently on March 18, 1978, the Board of Governors, after full consideration, voted on the issue of guilt or innocence. Ten members of the Board found Heavrin guilty on Counts IV through VII and recommended that he be suspended from the practice of law in this Commonwealth for a period of two years. It was further recommended by the Board of Governors that Heavrin pay the costs of these proceedings. One member found him not guilty. Thereafter Heavrin filed in this court a notice for review and brief.

This court has reviewed the record including the proceedings of the Jefferson Circuit Court entitled “Citizens Fidelity Bank and Trust Co. v. Donald M. Heavrin,” No. 176498, which by stipulation the parties made a part of this record all of the testimony and proceedings of the Jefferson Circuit Court.

In order to place the issues in proper perspective, this court is of the view that the findings of fact and conclusions by the Board of Governors very aptly cuts through the voluminous and prolix testimony presented before the trial committee including the evidence presented in Civil Action No. 176498 styled “Citizens Fidelity Bank and Trust Co. v. Donald M. Heavrin.” The finding of facts and conclusions of the Board of Governors are as follows:

PACTS

“The facts of the case are drawn from the proceedings of the Jefferson Circuit Court, entitled “Citizens Fidelity Bank and Trust Company v. Donald M. Heavrin, No. 176498”. By stipulation, the parties made a part of this record all of the testimony and proceedings of the Jefferson Circuit Court.

Sometime in March, 1972, Heavrin was employed and undertook to represent James F. Donoghoe, a former member of the association, on a charge of uttering a worthless check in the amount of $3,000.00. It appears that Donoghoe had some bizarre arrangement with certain clients in Pennsylvania to use $42,500.00 of a settlement he had made for them in a personal injury case. Donoghoe was to use the $42,500.00 in a real estate deal upon the payment of 9% interest to the client, subject to the right of the client to call upon Donoghoe from time to time for payment. The $3,000.00 which gave rise to the prosecution represented a check by Donoghoe to these clients which bounced. A Warrant was issued for Donoghoe’s arrest and an arrangement was made with the County Attorney’s office, whereby Donoghoe paid the $3,000.00 bad check and the case was continued by the County Attorney’s office until payment in full was made to the client.

Sometime during the course of his representation of Donoghoe Respondent learned that Donoghoe was being threatened with further criminal prosecution and disciplinary action before the Bar Association if the full amount of the unpaid balance was not immediately paid. The Respondent testifies that he informed Donoghoe that he must make restitution to these clients before the charges would be dismissed. The Respondent on one occasion engaged in a heated telephone conversation with one of the Pennsylvania clients in which the Respondent was informed that prosecution would ensue unless the money was paid.

The Respondent testifies that he felt Do-noghoe was being taken advantage of, therefore, he made arrangements to loan Donoghoe the money and the criminal prosecution subsequently abated.

The Respondent admits he did not have the money to loan, however, he undertook to raise the money and this is where the problems began to arise in this case.

The Respondent had previously represented one Norman Bodenbender and borrowed money from him personally on other occasions.

It appears that Mr. Bodenbender was a person of some means but secreted the full extent of his assets. The Respondent called Bodenbender and asked for the loan and Bodenbender questioned the purpose of the loan. At this point the Respondent felt his duty to his client (Donoghoe) prevented him from disclosing the purpose was really to bail out a recalcitrant lawyer so he told Bodenbender it was for a real estate deal. The conversation culminated in a loan to the Respondent by Bodenbender in the amount of $32,500.00 some two days later.

During the conversation and prior to his getting the money from Bodenbender, the Respondent admits that he was becoming suspicious of Donoghoe’s actions but in spite of his suspicions, he still felt that he could help him out of these difficulties and they discussed the matter of security for the loan from Respondent to Donoghoe.

Respondent states he was impressed with Donoghoe’s apparent affluence (airplanes, boats, cars, diamonds) and it was arranged that Donoghoe would sell to the Respondent some jewelry worth from $100,000.00 to $200,000.00 for $44,000.00, with an option in Donoghoe to repurchase the jewelry within thirty days at the principal amount plus 9% interest. A document to this effect was drawn up between Donoghoe and the Respondent.

With the $32,000.00 ($32,500.00) loan from Bodenbender, the Respondent paid $10,-000.00 to Fidelity Finance Corporation to pay off a loan to Donoghoe and get a release of the jewelry they were holding as collateral. The remainder of the loan was used to keep Mr. Donoghoe’s Pennsylvania clients from filing complaints with the Bar Association. To further carry out the plant, (sic) the Respondent borrowed $10,-000.00 from his father.

The Respondent took possession of the jewelry in question and took it to a jewelry dealer for safekeeping, intent upon returning and claiming the jewelry at the end of thirty days in the event Donoghoe did not come up with the money.

On June 12, 1972, Donoghoe came into possession of a check in the amount of $105,000.00 in settlement of a claim. The check had a number of payees on it, including a lawyer by the name of Haddad in Miami, Florida (no relation to Frank Had-dad). Donoghoe tried to cash the check at Liberty National Bank. The bank was somewhat suspicious of Donoghoe because of indications he had previously kited checks between banks in Louisville and Mr. Netherton from Liberty told Donoghoe to have the check certified.

In the meantime, Mr. Haddad of Florida called Netherton concerning a bad check of Donoghoe’s and Netherton mentioned the $105,000.00 check which had Haddad’s name on it and Haddad said he hadn’t endorsed it.

Donoghoe flew to Chicago and had the check certified and when Donoghoe presented the check again, Netherton wouldn’t cash the check because of his conversation with Haddad concerning a possible forgery.

After the second refusal by Liberty to cash the check, Donoghoe consulted with the Respondent who proceeded to assist him in cashing the check. Donoghoe and the Respondent went to the Liberty National Bank and attempted to cash the check and were refused, whereupon Heavrin became incensed, quoted some law about the UCC to the officer of the bank, and indicated he would take it to his bank at Citizens who would cash it.

Mr. Netherton of Liberty, having friends in the banking fraternity, attempted to call a friend at Citizens to warn him about the endorsement on the check, but was unable to reach him until Monday, June 19, 1972, at which time he alerted a Mr. Maple at Citizens of possible forged endorsements.

On June 15, 1972, Donoghoe gave a check for $49,000.00 to the Respondent to repay the loan the Respondent had made to Dono-ghoe, together with his fee. Within thirty minutes after the Respondent received the check from Donoghoe and deposited it to his account, Donoghoe called him and informed him that the check for $49,000.00 was no good because his wife had paid a series of large bills. Mr. Heavrin then wrote a check on his own account to Dono-ghoe in the amount of $49,000.00 which he admittedly did not have in his account.

On Friday, June 16,1972, the Respondent presented the $105,000.00 check to Mrs. Maureen Colley (sic) at the Citizens Bank and Mrs. Colley’s (sic) testimony is that Heavrin represented to her that he knew personally each person had endorsed the check.

Heavrin denies this and, in fact, there is some controversy whether Heavrin endorsed the check in the presence of Mrs. Colley (sic) or had already endorsed it prior to presenting it to her.

In any event, there was some controversy prior to the cashing of the check but after consultation with bank officials, and the check bearing certification, the Citizens Fidelity cashed the check; whereupon, the Respondent put $45,000.00 in his attorney account, $49,000.00 in his personal account, and took $11,000.00 in cash which he turned over to Donoghoe.

On June 16,1972, the Respondent wrote a check payable to cash for $35,000.00 on his Attorney at Law Account and later deposited the same in his Escrow Account at the Bank of Louisville. On the same day he drew a check to Donoghoe in the amount of $48,958.00 on his personal account, and further on June 19, 1972, he certified a $10,-000.00 check on his Attorney at Law Account making it payable to himself, which was then placed in his Escrow Account with the Bank of Louisville.

On June 17, 1972, he deposited the $35,-000.00 in his Escrow Account and made disbursements in the following sums:

$57.00 to Dennis O’Connor
$5,489.50 to Thomas B. Robertson, Sr.
$569.50 to James F. Donoghoe
$24,884.00 to Norman Bodenbender
$2500.00 to Don N. Heavrin
$1500.00 to Don N. Heavrin.

A further recitation of facts is unnecessary, however, we deem it appropriate to note that eventually it was found the endorsement on the checks were either wholly or partially forged, and litigation arose between the Citizens Fidelity Bank and all parties, including the Respondent, Heavrin, to establish liability for the forged endorsements. The Judgment of the Jefferson Circuit Court found the Respondent, Heavrin, liable for $11,000.00 which the Bank turned over to him in cash personally and which he later gave to Donoghoe.

QUESTIONS PRESENTED

1. Does the Conduct of Heavrin With Respect to His Dealings With Donoghoe Constitute Unethical and Unprofessional Conduct Calculated to Bring the Bench and Bar of Kentucky Into Disrepute?

2. Is the Bar Association Barred From Bringing These Disciplinary Proceedings on the Grounds That the Decision of the Jefferson Circuit Court in the Civil Action is Res Judicata?

FINDINGS

On June 23, 1977, the Trial Committee duly appointed herein, filed a Trial Committee opinion, one member of the committee filing a dissenting opinion, recommending that the Board of Governors dismiss the charges because Respondent alleged the Bar Association had not proceeded properly under the provisions of former RAP 3.160. On July 16, 1977, the Board of Governors entered the following order:

‘Motion adopted by the Board of Governors referring the disciplinary matter concerning Donald M. Heavrin back to the Trial Committee with the direction that the Trial Committee file on or before September 9,1977, a report in compliance with RAP 3.360. The report may still include a recommendation to dismiss for procedural defects.’

The Board feels the Respondent’s conduct with respect’ to cashing the $105,000.00 check was in direct contravention of DR 1-102(A)(4). Further, the Board finds a violation of DR 9-102(A) relative to the separation of funds. No amount of check manipulating by the Respondent as went on in this case can be justified under the circumstances which are evident when the entire facts are documented. It is tragic the manipulations of the Respondent caused the financial losses documented in this sordid affair.

The Board further finds the conduct of the Respondent constituted a reckless disregard for the rights of the payees on the checks in question and is a violation not only of Canon 9 of the Code of Ethics in regard to Trust Funds, but also DR 1 — 102.

The Board cannot accept the Respondent’s explanation of his conduct, especially in view of the uncontroverted testimony that prior to his entering into this sordid check cashing affair, he was suspicious of Donoghoe’s conduct. No attorney owes the duty to a client to enter into a course of action destined to lead to the bilking of innocent parties of their money. Once having entered into this course of conduct the Respondent then devoted most of his energy to the protection of his own financial interests and not to the protection of the parties rightfully entitled to the funds.

The Respondent’s contention that disciplinary action in this case is barred under the doctrine of Res Judicata is not valid. Res Judicata prevents a retrial of a matter which has been decided on the merits, 9 ALR 3rd 210, See. 2(B). This matter has further been decided by the Court of Appeals in the case of Ratterman v. Stapleton, Ky., 371 S.W.2d 939 (1963).

“The Board differs with the Trial Committee in that a majority of the Board feels the conduct of the Respondent as set out above constituted conduct calculated to bring the bench and bar of Kentucky into disrepute for the foregoing reasons.”

This court has reviewed the record and a majority of the members are of the opinion that the record adequately supports the conclusions of the Board of Governors of the Kentucky Bar Association that Heav-rin is guilty of unprofessional conduct of sufficiently serious nature to warrant that he be suspended from the practice of law in this Commonwealth for a period of two years. The Board of Governors found that Heavrin had violated Canon 1 of the Code of Professional Responsibility which provides that a lawyer should assist in maintaining the integrity and competence of the legal profession. It found also that Heav-rin violated Disciplinary Rule 1-102(A)(4) which states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. The Board found also that Heavrin violated Canon 9 of the Code of Professional Responsibility which provides that a lawyer should avoid even the appearance of professional impropriety. It is the view of the majority of the members of this court that Heavrin was more interested in protecting his interests than that of his client and that he knew at all times what he was doing. It is also the view of the majority of the members of this court that Heavrin was not a “lamb led to the slaughter” by the artful cunning of a skilled con man, James F. Donoghoe, a former member of the Kentucky Bar Association who has previously been permanently disbarred.

It is therefore ordered that Donald M. Heavrin is hereby suspended from the practice of law in the courts of this Commonwealth for a period of two years and it is ordered that he pay the costs of these proceedings.

All concur except PALMORE, C. J., and CLAYTON, J., who dissent.

PALMORE, Chief Justice,

dissenting.

The Trial Committee which heard the evidence in this case found Heavrin guilty of nothing more than bad judgment, and recommended unanimously that all charges against him be dismissed. Ten members of the KBA Board of Governors nevertheless found him guilty on the last four of seven counts.

Count 1 of the formal charges related to the alleged loan of money by Heavrin to Donoghoe, secured by a pledge of jewelry. Count 2 cited the circumstances of the loan to Heavrin from Bodenbender. Count 3 charged Heavrin with covering up ethical misconduct on the part of Donoghoe by borrowing money to pay the claims of his disgruntled clients. These are the three counts on which both the Trial Committee and the Board of Governors found Heavrin not guilty of any unethical conduct. The other four counts all relate to the handling of the $105,000 check and its proceeds and the exchange of worthless $49,000 checks between Heavrin and Donoghoe. This is the area in which the Board of Governors adjudged misconduct, and in which I do not concur in its judgment. After reading Heavrin’s testimony from the perspective of how things appeared to him at the time each of the successive events took place, I am not convinced that his conduct justifies a mark of Cain that he will have to bear for the rest of his life.

Despite the large record in the bank case (which loses some of its importance with this court’s unanimous rejection of the theory that the circuit court judgment forecloses the question of ethical misconduct), there really is not much in the way of conflicting evidence. The facts are virtually undisputed. The one question on which Heavrin and a witness differed is whether he told Miss Collie, at the Citizens Bank, that he had personal knowledge that the endorsements on the $105,000 check were genuine. She said he did. He denied it. The Board of Governors made no finding on that precise issue. The finding of the Committee was “There was no evidence of any unethical conduct in the cashing of the check.”

This is a very critical point to me because if I were convinced that Heavrin did lie to Miss Collie I probably would concur in the majority opinion. I think, however, that a lawyer standing in jeopardy of losing his livelihood and sustaining a permanent blemish on his reputation is entitled to the benefit of any reasonable doubt. Both Miss Collie and Heavrin gave their initial recollections of the conversation more than a year after it had taken place, and by that time each of them had an axe to grind. It was to her interest that she not appear to have been careless, because her employer, the bank, stood to lose $105,000 if found guilty of negligence. And presumably it was in Heavrin’s interest to resist any suggestion of intentional wrongdoing. There is no doubt that Heavrin himself believed the endorsements were good. Not only did he guarantee them by adding his own endorsement, but he offered to and did to the best of his knowledge tell the bank, before it honored any checks drawn against the $94,000 deposited by him, where these endorsers could be reached in order that their signatures could be verified. I cannot convict him on the strength of the Collie exchange. Not many people can recall the precise details of past conversations with such Proustian accuracy as the majority of this court seems to ascribe to Miss Collie’s version.

Donoghoe had been referred to Heavrin by Frank Haddad, then an official and later president of the Kentucky Bar Association. At this point in time, of course, the real Donoghoe had not been revealed to the world as it knows him now, serving a sentence in the penitentiary for bilking his clients. He was to all appearances a highly successful damage-suit lawyer. Like most big spenders, he was short on cash and behind in settling his accounts, but ostensibly had plenty of assets. Certainly Heav-rin, so far as this record shows, had no reason to and in fact did not doubt his solvency or suspect that he was living in a house of cards that was about to collapse. Heavrin was simply an impressionable young lawyer with less than five years of practice, representing a proven moneymaker with lots of jewelry, big automobiles, and a showy home, who had suddenly fallen into financial straits that must have seemed no more than temporary and accidental. As Heavrin saw it, and justly so, his job as a lawyer was to fight a rear-guard action until Donoghoe could regain his footing.

Donoghoe had collected some money from clients in Pennsylvania, and he said they were letting him borrow some or all of it for 9% interest. He was in arrears in settling with them, and when Heavrin came into the picture they had caused criminal charges to be brought against him. According to Donoghoe, he owed the Pennsylvania people $42,500, but the immediate problem was a $3,000 cold check he had sent them. The check matter was straightened out in short order, but between the Pennsylvania people and other creditors Dono-ghoe still owed about $44,000 and the Pennsylvanians were pressing for immediate satisfaction of their demands. Meanwhile, Do-noghoe assured Heavrin that he was expecting in the near future a fee of $100,000 or more out of a hotel transaction in Ow-ensboro and substantial fees from several other pending cases, including the one in Florida. In order to get the Pennsylvania clients off Donoghoe’s back Heavrin undertook to borrow the necessary money himself, believing of course that Donoghoe would be able to repay it within a short time. First he applied to Bodenbender, who had only $32,500 available to lend, and later he got $10,000 from his stepfather in Atlanta.

Out of the $32,500 borrowed from Boden-bender, $10,000 was used to redeem out of hock some jewelry owned by Donoghoe, including a 10-carat diamond ring insured with Lloyd’s of London for $55,000. Heav-rin’s impression was that the jewelry had a value between $100,000 and $200,000. To secure himself, he drew up and had executed an agreement by which Donoghoe sold him the jewelry for $44,000 subject to a right to repurchase it in 30 days for the same price plus 9% interest. Heavrin applied the remainder of the Bodenbender loan toward Donoghoe’s debts, including partial payment of the Pennsylvania claims. Then the Pennsylvania people became importunate for the balance of their money, and this is when Heavrin resorted to his stepfather for the $10,000 loan. Except for an item of $5489 still owing to one Thomas Robertson, the last of the money owed to the Pennsylvania clients was paid out of the $10,000. Donoghoe now owed Heavrin $42,-500.

Shortly afterward, as Donoghoe had assured Heavrin would happen, one of the Donoghoe China clippers came sailing home full-laden. On June 6,1972, a Chicago firm issued a $105,000 check in partial satisfaction of a judgment and settlement he had obtained in Florida incident to a wrongful death action. It was made out to Calvin Young, surviving father of Ray Edward Young, deceased; Donoghoe as administrator of the Ray Edward Young estate; Edgar Addington, surviving father of Carl Addington, deceased; Estill Blair as Administrator of the Carl Addington estate; and Donoghoe and a Florida law firm, their attorneys. Young resided in Raceland, Greenup County, Kentucky, and Addington and Blair lived in Whitesburg, Letcher County, Kentucky, though Heavrin thought they all lived in Whitesburg. In any event, at some time before the check was finally negotiated Donoghoe rented an airplane for the purpose, as Heavrin understood it, of going to Whitesburg to have it endorsed.

On Tuesday, June 13, Heavrin saw Dono-ghoe off on a plane trip to Miami to see the Florida lawyers, and on that day Donoghoe did in fact give Gilbert Haddad, a member of the Florida firm, a $22,000 check in payment of its share of the attorney-fees. On Thursday, June 15, Donoghoe presented the $105,000 check at the Liberty National Bank, in Louisville, where he had an account. It bore the endorsements of all the payees, though as we now know the endorsements other than Donoghoe’s own had been forged by him. The bank declined to negotiate the check unless it was certified. Donoghoe then took a plane to Chicago, had the check certified, and on the next day, Friday, June 16, returned with it to the Liberty Bank. Meanwhile, however, by a rare coincidence Mr. Haddad, the Florida lawyer, had telephoned the Liberty Bank to ask whether the check he had received from Donoghoe was good, had learned during this conversation from Mr. Netherton, an officer of the bank, that Donoghoe was seeking to negotiate the $105,000 check, and had advised the bank that he, Haddad, had never endorsed that check.

In view of this information from Haddad, Mr. Netherton again declined to negotiate the check, but concedes that he did not tell Donoghoe the reason why he would not do so. Heavrin, who accompanied Donoghoe to the bank on Friday, could not understand why the bank would not honor a certified check, and suggested to Donoghoe that they take it over to the Citizens Bank, where Heavrin was a regular customer. Through Miss Collie, as we know, Citizens honored the cheek, paying Heavrin $11,000 in cash and crediting $49,000 to his personal account and $45,000 to his business account.

Meanwhile, on Thursday the 15th the exchange of worthless $49,000 checks had taken place. On that day Donoghoe gave Heavrin a $49,000 check drawn on the Liberty Bank to cover the $42,500 Heavrin had borrowed and paid out for him plus a fee for Heavrin’s services. Heavrin deposited it in his bank account at Citizens, but very shortly thereafter Donoghoe came to Heav-rin’s office and wanted the check back because his wife had written some other checks that would deplete his bank account. When Heavrin told him he had already deposited the check, Donoghoe asked Heavrin to write him a check in the same amount so that he, Donoghoe, could deposit it. Heavrin complied. On the next day the checks were returned by the respective banks, to no one’s loss. Unorthodox as this transaction may have been, there was no intent, on Heavrin’s part at least, to injure or defraud anyone, and no inj'ury or fraud resulted from it.

Returning now to Friday, June 16, 1972, the day on which the $105,000 check was negotiated at the Citizens Bank, it is necessary to introduce other background details to facilitate understanding Heavrin’s handling of the money. As we have said, he understood that Donoghoe had been to Whitesburg to see the clients there, and he knew he had gone down to Miami to see the Florida lawyers. It was not unreasonable for him to assume that the necessary endorsements on the check had been procured in the course of these visits. Donoghoe had told him that he had a 50% contingent-fee arrangement with the clients. Heavrin also had the impression from Donoghoe that the $105,000 was part of a settlement that amounted to $175,000 or $180,000, though actually the total was $130,000 (an $80,000 judgment on the Young claim and a $50,000 settlement of the Addington claim).

Heavrin kept an escrow account in the Bank of Louisville, several blocks distant from the main office of the Citizens Bank where the $105,000 transaction took place. In the Citizens Bank he maintained two accounts, a business account for his office transactions (which he called his “legal account”) and a personal account for his private or household affairs. When the bank honored the $105,000 check, Heavrin gave Donoghoe $11,000 in cash and deposited $49,000 in the personal account and $45,-000 in the office account. At this point it is important to understand that these two deposits in Heavrin’s bank accounts at Citizens were made for the sake of temporary convenience, and not through any intent to commingle clients' funds with personal funds. The transaction took place toward the end of banking hours on Friday, June 16, 1972. The Bank of Louisville, where Heavrin kept his escrow account, was several blocks away. Donoghoe was in a hurry, because, as Heavrin understood it, “he was going to drive down or fly down to Whites-burg and pacify the clients and Estill Blair . who knew all the families and who was the executor of one of the estates. Mr. Blair had been in Louisville either a day or two days before that to get money out of the settlement for the purpose of paying immediate bills that were pressing down on these people, and Donoghoe’s comment was that out of a case where he had earned 80 some-odd thousand dollars ... he had gotten to keep $1,000. He was going to keep $1,000 and take $10,000 to those people.”

According to Heavrin, Blair had come to town very shortly after Donoghoe received the $105,000 check, “and it had taken such a long time to get the money after the settlement of this case that the people down there were committed on some financial obligations that had to be met, and they were not particularly anxious to have to wait for a check to be deposited and clear the bank, and so Blair came up to Louisville to get cash to satisfy their immediate financial needs. That was one of the things he [Donoghoe] objected to when I asked him to have the check certified. He objected because Blair was in Louisville and he wanted the money. So he apparently worked out some arrangement where Blair went back to Whitesburg and the agreement seemed to be that he would then personally deliver the money down there to those people.”

So much for the $11,000 in cash. The two bank accounts at Citizens were utilized merely as conduits for the remaining $94,-000. The $45,000 deposited in the office account was promptly checked out and deposited in his escrow account at the Bank of Louisville for use in paying off Donoghoe’s accounts, including what he owed Heavrin. In other words, Heavrin received $45,000 for the purpose of satisfying the outstanding claims against Donoghoe, which he proceeded to do, through checks drawn on his escrow account. The other $49,000 was for Donoghoe to distribute to his clients, and was deposited in Heavrin’s personal account so that Heavrin could give Donoghoe a check instead of $49,000 in cash. Accordingly, Heavrin drew a check to Donoghoe for $48,958 that same afternoon.

To summarize the transaction at Citizens Bank on June 16, out of the $105,000 check Donoghoe got (in round figures) $60,000, $11,000 of which was cash and $48,958 was in the form of a check from Heavrin, and the remaining $45,000 was processed through Heavrin’s personal account at Citizens Bank into his escrow account at the Bank of Louisville. Heavrin proceeded to disburse the $45,000 as agreed, and Dono-ghoe, presumably, made off with the $60,-000. Heavrin’s explanation for having placed the money in two different bank accounts at Citizens was to the effect that he wanted to keep the money he was going to disburse, and for which he regarded himself as accountable, separate from the money going directly to Donoghoe.

There are a few knots and kinks in the factual picture of this case that this writer has not been able to unravel. For example, there is the $42 difference between the $49,000 deposited in Heavrin’s personal account and the $48,958 he cheeked out of it to Donoghoe. That it was later reimbursed to Donoghoe as a part of the $569.50 drawn by Heavrin on his escrow account was brought out in the testimony, but why the difference in the first place is one of those little mysteries to which the lawyers in the case apparently knew the answer already and did not attempt to get into the record. Nevertheless, neither this particular hiatus nor any of the other unanswered puzzles inhering in the record provide any supportive basis for the charges of ethical misconduct against Heavrin.

At this point, it ought to be brought to the reader’s attention that the formal charges initiated against Heavrin by the Inquiry Tribunal contained no reference whatever to the Canons or Disciplinary Rules but alleged facts only. The rules and principles alleged to have been violated were selected at the end rather than the beginning of the process, both figuratively and literally as an afterthought. Somewhat in the style of Alice’s Queen of Hearts, the Board evidently convicted Heavrin first and then decided what it had convicted him for. This may comport with due process, but it makes me think that perhaps Heavrin has been right all along in insisting that from the beginning the charges were never sufficient.

The KBA Board of Directors concluded that Heavrin’s conduct with respect to the $105,000 check violated DR 1-102(A)(4), which provides that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Except for the alleged misrepresentation to Miss Collie, concerning which I do not believe the evidence is sufficient to justify a finding of guilt, it is very clear to me that there is no basis whatever for condemning Heavrin under this rule, which is directed at intentional or wilful misconduct as distinct from negligence or bad judgment.

The next respect in which the Board found Heavrin guilty was that he violated DR 9-102(A) “relative to the separation of funds. No amount of check manipulating . as went on in this case can be justified under the circumstances which are evident when the entire facts are documented.” This finding shakes me to the very foundation, because it could only have resulted from a failure to study this record thoroughly and then to think about it long enough. Even one complete reading of the evidence would not bring to a lawyer of average mentality (at least this one) a sufficient grasp of the details to mount a fair perspective. Heavrin himself, for example, testified at length on three different occasions, and one must go back and forth among these three transcripts in order to fill in the gaps and fit the pieces together. The process of gathering, collating, arranging and compressing the pertinent evidence into the simple narrative set forth in this dissenting opinion certainly has consumed more of the writer’s time than might appear at first blush.

DR 9-102(A) condemns the mingling of a lawyer’s funds with those of his client. No one has cited any authority for the proposition that it cannot be done with the knowledge and consent of the client. The client in this instance was Donoghoe. Everything that was done was with his knowledge and for his convenience and, to the extent that any “commingling” occurred, it was done in his very presence and under his supervision. But even if that were not a sufficient answer to the charge of commingling, there was no real commingling here anyway. $49,000 was put into one of Heavrin’s accounts so that he could give Donoghoe a check instead of cash. The other $45,000 was put in his office account so that he could write a check to his escrow account in another bank and then distribute the money as directed by his client, which he did. Except for the insignificant $42 mentioned earlier -in this opinion, the deposit and transfer of these funds were completed almost contemporaneously. None of the money remained in either of Heavrin’s private accounts long enough to get warm, much less to find a new home. I cannot believe the members of the Board thought this through.

The last references by the Board to specific rule-violations are that Heavrin’s conduct “constituted a reckless disregard for the rights of the payees on the checks [sic] in question and is a violation not only of Canon 9 of the Code of Ethics in regard to Trust Funds, but also DR 1-102.”

Both Canon 9 and DR 1-102 cover a good deal of territory. Canon 9 says, “A lawyer Should Avoid Even the Appearance of Professional Impropriety.” The Ethical Considerations and Disciplinary Rules following Canon 9 all provide specific applications of that broad precept. Except for the matter of commingling funds, which I have already discussed, none of them comes close to this case. DR 1-102 declares it misconduct to (1) violate a Disciplinary Rule (2) circumvent a Disciplinary Rule, (3) engage in illegal conduct involving moral turpitude, (4) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, (5) engage in conduct that is prejudicial to the administration of justice, or (6) engage in any other conduct that adversely reflects on his fitness to practice law. Thus far, I do not see that Heavrin violated or circumvented any of the Disciplinary Rules mentioned by the Board, and I do not believe anyone involved in this proceeding would claim that he engaged in illegal conduct. If he did, apparently the grand jury of Jefferson County never got word of it. Item (4), as I have suggested before, refers to intentional deceit. Item (5) pertains to the administration of justice and obviously can have no application to this case. Only Item (6), “conduct that adversely reflects on his fitness to practice law,” could possibly be argued as appropriate to the charge that Heavrin disregarded the rights of the payees of the $105,000 check.

Some years ago, in Kentucky State Bar Association v. Taylor, Ky., 482 S.W.2d 574, 582 (1972), we made the following observation: “If the canons of ethics adopted for the legal profession were tested under the ‘void for vagueness’ doctrine which has spelled the doom of various breach of peace and disorderly conduct laws throughout the country it is doubtful that they would survive this case.” I repeat that observation here. Although this is not a criminal case, and the principles of constitutional law applicable to criminal cases are not entirely applicable here, the right to engage in a professional practice, once earned, is a right of great value, and its loss by revocation or suspension is nearly as serious a punishment as a criminal conviction and sentence. Without attempting to research and write a law-review article on the subject, I think the due-process rights of a respondent in a disciplinary proceeding which may result in the loss or suspension of his license to practice can be no different from those of a defendant in a criminal case. In fine, the law under which he is being tried must be clear, and the charge must be specific. In this proceeding neither of those requirements has been satisfied.

“Conduct that adversely reflects on his fitness to practice law.” By what standard? And more importantly, by whose standard? The answer is unavoidable — the subjective standard of whoever happens to be doing the judging. So far as I am concerned, that cannot be the law in a civilized society — not in this country, anyway.

Assuming, however, that I am wrong in holding the opinion that this undefined standard of conduct, uncoupled with some other more specific violation, cannot be a valid basis for disciplinary action, let us take one last look at the culpability, vel non, of Heavrin’s conduct toward Dono-ghoe’s clients.

The first thing that must be remembered is that he believed Donoghoe and trusted Donoghoe. He thought Donoghoe had 50% of the money coming to him as a fee. The $60,000 turned over to Donoghoe was ample to satisfy his clients. The endorsements on the check, which Heavrin assumed to be genuine, gave witness that the clients trusted Donoghoe with the proceeds of the check. Indeed, had Heavrin merely given Donoghoe the whole $105,000 in cash, this proceeding would never have arisen. As it is, he took care to see that out of the share of the money he thought was Donoghoe’s, Donoghoe paid his debts. It just did not occur to him that Donoghoe, with what Heavrin thought to be enough money to settle with his clients, would not do so.

Gullible, yes. Careless, probably. Moral turpitude, no. Suspension from practice, emphatically no. I simply feel that my obligation as a judge compels me to protest this result,

CLAYTON, J., concurs in this dissent.

      . “The Initiation of Disciplinary Cases

      (a) Any complaint against an attorney for unprofessional conduct shall be filed with the Director who shall promptly notify the attorney by certified mail of the complaint and inform him that he has 15 days to acknowledge receipt of the complaint or respond to the merits.” Amended Oct. 14, 1977, effective Jan. 1, 1978. (No substantial change in this section.)

      . One volume consisting of the original record, eight volumes of depositions, and three volumes of evidence.

      . The trial court absolved Heavrin of liability except for $11,000.00 he received when the $105,000.00 check was presented to Citizens for deposit. This was before Maureen Collie, who authorized the transaction, knew anything concerning the questionable endorsements.

      .In lawyer’s language this is a misrepresentation. In Layman’s language this is a lie.

      . This was prior to June 15, 1972.

      . The majority of the court believes Ms. Collie.

      . This is a standard which is neither vague nor ambiguous. See Nicholson v. Judicial Retirement and Removal Commission, Ky., 562 S.W.2d 306, Part I (1978).

      . This is a civil not a criminal proceeding. Proof by a preponderance of the evidence is all that is required. Louisville Bar Ass’n v. Hubbard, 282 Ky. 734, 139 S.W.2d 773 (1940); Commonwealth v. Richie, 114 Ky. 366, 70 S.W. 1054 (1902); see also Kentucky Bar Ass’n v. Franklin, Ky., 534 S.W.2d 459 (1976).

      . It may fairly be inferred, moreover, from Miss Collie’s testimony that in clearing the check she was chiefly influenced by the fact that it had been certified.

      . Eventually the circuit court did find the bank negligent and held it liable for $94,000 of the loss, that being the amount still undrawn from Heavrin’s accounts when the bank discovered facts sufficient to put it on notice that one or more of the endorsements had been forged. Miss Collie, of course, was not in any way responsible for the bank’s failure to act at that time.

      . Heavrin’s description of Donoghoe: “At that time I was gullible and more or less totally impressed with the guy. The guy had a fantastic house, the best cars money can buy, the biggest cases of anybody I have seen in my life, made more money than I imagined to be on the face of the earth, telephones in his car, a cable address, pilot, adventurer, marine,” etc. It is clear that Donoghoe was a con artist of masterful proportions, and was able to take Heavrin in as easily as he had gained the confidence of his own clients.

      . According to Heavrin, the reason given by Netherton was that it was “drawn on uncollected funds.”

      . Though Donoghoe did not testify in the bank case or in this proceeding, when he gave Heav-rin the $49,000 check he was about to deposit the $105,000, and it might reasonably be surmised that the Liberty Bank’s unexpected refusal to credit the $105,000 check to his account was the real reason he came to Heav-rin’s office to retrieve the $49,000 check.

      . In fact, it was a 40% contract.

      . Unbeknownst to Heavrin, Donoghoe had previously received and forged the endorsement of Calvin Young on a $20,000 check made out to him and Young. The remaining $5,000 had already been paid in the form of still another check, which is not involved here.

      .One payment out of this fund was a $569.50 check to Donoghoe, which Heavrin explained was to reimburse him for the amount of a miscalculation in computing the total of outstanding debts.

      . This $42 difference between the $49,000 deposit and the $48,958 check was reimbursed to Donoghoe in the $569.50 check mentioned in footnote 8.

      . It is interesting to note that at one point during the course of getting the $105,000 check negotiated Heavrin actually thought about calling Mr. Blair in Whitesburg to make sure it was all right, but changed his mind out of a feeling of guilt for mistrusting Donoghoe, who, as Heavrin put it, had never lied to him.

      . At that time we had not yet decided First Nat’l Bank of Louisville v. Progressive Cas. Ins. Co., Ky., 517 S.W.2d 226, 230 (1975), holding that an attorney has no proprietary interest in money collected for his client until he has delivered it over to the client. (That case arose out of another of Donoghoe’s criminal excursions.)

      .The $45,000 payment to Heavrin also operated to redeem Donoghoe’s jewelry, which now became un unencumbered asset of considerable value.