author: SUMMERS, Chief Justice.

text:
    Ray BURKLUND et al., Appellant, v. Charles W. HACKETT, Jr., et al., Appellees.
    No. 1168.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 14, 1978.

      J. C. Hinsley, Austin, for appellant.
    Douglass D. Hearne, Stayton, Maloney, Hearne & Babb, Austin, for appellees.
   SUMMERS, Chief Justice.

This is an appeal from an order of the district court, granting a temporary injunction. Appellants, defendants below, include Ray Burklund, Edgar A. Smith, and Ernest 0. Schneider, as the Board of Equalization for the Del Valle Independent School District, Laura Zglinski, Tax Assessor and Collector for the Del Valle Independent School District, the Board of Trustees for the Del Valle Independent School District, and the Del Valle Independent School District itself. Appellees, plaintiffs below, Charles W. Hackett, Jr. and Francis H. Clark, are landowners and the legal representatives of estates or trusts which own land within the Del Valle Independent School District. The temporary injunction, which is the subject of this appeal, enjoins appellants from placing the presently proposed values for appel-lees’ property upon the tax rolls, from approving the tax rolls insofar as it concerns appellees’ property, and from levying or attempting to collect taxes from appellees based upon the presently proposed values placed upon appellees’ property pending the trial of the case on the merits.

The Board of Equalization had scheduled but one day, October 31, 1977, on which to hear taxpayer appeals. Appellee Hackett appeared before the Board on behalf of all appellees and presented his appeal in the morning. Later that same day, this suit was initiated and a temporary restraining order was issued by the district court against appellants. Subsequently, the district court extended the temporary restraining order three times for a total of twenty-one days. Appellees’ first amended petition alleged that appellants intended to apply an unconstitutional plan or system of taxation to appellees’ property and that if such a system of taxation were allowed to go into effect, the result would be immediate, irreparable, and substantial injury to appel-lees.

A hearing on the temporary injunction was held and evidence submitted to the trial court. At the conclusion of the hearing, the district court issued the order which is the subject of this appeal. The recitations in the order granting the temporary injunction relate the trial court’s findings that appellees had shown a probable right and probable injury. The district court found that the proposed valuation scheme, which failed to take into account the reasonable cash market values of land in the district, was based upon a series of five categories. If such a system of taxation were put into effect, appellees would suffer irreparable and substantial injury for which no adequate remedy at law existed. Therefore, the district court concluded that appellees were entitled to a preservation of the status quo of the subject matter of this suit pending a final trial on the merits. From this adverse order, appellants have perfected this appeal predicated upon nineteen points of error.

As an appeal from an interlocutory order granting a temporary injunction, we must be cognizant of the limited scope of appellate review to be applied. In a suit for temporary injunction, the trial court is endowed with broad discretion to either grant or deny the application. Railroad Commission v. Shell Oil Company, 146 Tex. 286, 206 S.W.2d 235, 242 (1947). The sole question to be addressed by the appellate court is whether the trial court’s action constituted a clear abuse of discretion. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.Sup.1978); Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 462 (1952).

Appellants’ first point of error complains that the trial court erred in granting the temporary injunction because the undisputed evidence established that appellants had neither made nor announced any determination as to what values would be placed on appellees’ land for tax purposes or when the Board of Equalization would adjourn. Therefore, argue appellants, any conclusion as to what action would be taken by appellants is pure speculation and may not be the basis of injunctive relief. The primary thrust of appellants’ contention is that ap-pellees filed suit too early. Appellants argue that there was no evidence that they would have approved the appraised values submitted by the tax assessor, certified the tax rolls, and adjourned before appellees could initiate a suit for injunctive relief and therefore, appellees should have waited until the Board of Equalization disposed of the taxpayer appeals and assessed their property values. We disagree.

The remedies available to an aggrieved taxpayer vary significantly, depending on whether suit is filed before or after the tax plan is put into effect. In order to avail himself of the remedies of mandamus and injunction to prevent a taxing agency from utilizing a fundamentally erroneous or illegal plan, a direct attack must be made before the tax plan is put into effect. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 416 (1954). The courts grant relief upon proof of the adoption of a fundamentally erroneous plan of taxation, the application of which substantially injures the aggrieved taxpayer. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 573 (1954). The sole question presented to the trial court in a hearing for temporary injunction is whether the applicant is entitled to preservation of the status quo. If the plan of taxation is already in effect, preservation of the status quo would require keeping the taxing scheme and tax rolls approved under the allegedly erroneous scheme already adopted. Therefore, where the taxpayer fails to avail himself of the remedies of mandamus and injunction to prevent the plan of taxation from going into effect, his right to relief is limited. City of Arlington v. Cannon, supra. The litigant may then defeat recovery of the taxes only to the extent they are excessive and he must assume the burden of proving excessiveness. The onerous burden of proving the precise dollar amount of the increased tax burden is the penalty borne by the taxpayer for sitting idly by while the fundamentally erroneous plan of taxation was put into effect. Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, 383 (1955); City of Arlington v. Cannon, supra, 271 S.W.2d at 417; Atlantic Richfield Company v. Warren Independent School District, 453 S.W.2d 190, 198 (Tex.Civ.App.—Beaumont 1970, ref’d n. r. e.). If the aggrieved taxpayer’s taxes and valuations are not excessive, even though a fundamentally erroneous plan of taxation was employed, he is not entitled to relief. McPhaul v. City of Lubbock, 401 S.W.2d 705, 707 (Tex.Civ.App.—Amarillo 1966, ref’d n. r. e.).

In the instant case, it is undisputed that appellees filed this suit and a temporary restraining order issued while the Board of Equalization was still in the process of hearing taxpayer appeals and prior to any public announcement of the Board’s disposition of appellees’ challenge. Appellees respond to appellants’ claim, that there was no basis for injunctive relief because the suit was prematurely filed, by submitting that the case should be considered in light of the past acts and practices of appellants. Appellee Hackett had appeared before the Board of Equalization in both 1975 and 1976. In 1975, the Board convened on August 18th, appellee Hackett appeared before the Board on that date, and the Board completed its work and adjourned on that same date at 2:10 p. m. Once again in 1976, the Board followed a similar pattern. The Board of Equalization met on October 18, 1976, heard taxpayer appeals, including ap-pellee Hackett, completed its work on that date, approved the tax rolls that evening, and adjourned that very same evening. A suit was initiated on October 25, 1976, which was between essentially the same parties and over the same property as the case presently before us. The trial court granted the application for temporary injunction and defendants perfected their appeal. The order of the trial court was reversed and the cause remanded with instructions to dissolve the temporary injunction. Zglinski v. Hackett, 552 S.W.2d 933 (Tex.Civ.App.—Austin 1977, ref’d n. r. e.). The Austin court held that under the rule of City of Arlington v. Cannon, supra, the tax plan had already been put into effect and therefore injunction would not lie. Nothing remained to be done to put the 1976 tax plan into effect and the fact that appellees had not yet received their tax notices when the suit was filed was of no importance. Zglinski v. Hackett, supra at 935.

The evidence presented during the hearing on the application for temporary injunction in the instant case shows that only one day had been scheduled by the Board of Equalization to hear taxpayer appeals. The evidence also shows that the tax assessor-collector had the tax statements for 1977 in her office waiting for the Board’s approval of the tax rolls. In addition, the record reflects that appellees’ counsel asked the chairman of the Board of Equalization whether sufficient time would be afforded appellees, after receiving notice of the Board’s disposition of their case and prior to adjournment, in order to file their lawsuit. Appellees allege that the chairman’s only response was that Mr. Hackett would be informed of the Board’s answer in writing at a later time.

Generally, past acts and practices will not furnish a basis for injunctive relief unless it is shown that they probably will recur. Combined American Insurance Company v. City of Hillsboro, 421 S.W.2d 488, 489 (Tex.Civ.App.—Waco 1967, ref’d n. r. e.); Panola County Commissioners Court v. Bagley, 380 S.W.2d 878, 884 (Tex.Civ.App.—Texarkana 1964, ref’d n. r. e.); Rowan v. Pickett, 237 S.W.2d 734, 738 (Tex.Civ.App.—San Antonio 1951, n. w. h.). See also Luccous v. J. C. Kinley Company, 376 S.W.2d 336, 341 (Tex.Sup.1964). Where a taxpayer challenges the imposition of taxes upon his property in a direct attack upon a constitutional infirmity and prosecutes his suit with diligence, that is all we should require. Atlantic Richfield Company v. Warren Independent School District, supra at 196. In the instant case, the record clearly shows that appellants have attempted to maintain appellees’ perch upon the horns of a dilemma. Should appellees await the Board’s disposition of their case, as they have done in the past, appellants may put the tax plan into effect and present appellees with the onerous burden of proving excessiveness. Where appellants refuse to inform appellees of when the Board will adjourn or if the opportunity to file suit will be afforded, then appellees are confronted with the contention that their suit is premature, if filed before the Board acts and the tax plan put into effect. The evidence demonstrates appellants’ efforts to eliminate the opportunity to mount a direct attack for injunctive relief regardless of the diligence employed by appellees. We do not believe the trial court abused its discretion by refusing to allow appellants to thrust upon appellees this onerous burden and appellants’ first point of error is overruled.

Appellants’ eighth and ninth points of error contend that the trial court erred in overruling appellants’ motion to strike the testimony of T. E. Wiley and in admitting such testimony over the appellants’ objections. This was error, contend appellants, because such testimony was based on information secured in violation of Disciplinary Rule 7-104 of the Code of Professional Responsibility, Article 320a-l, App., article 12, section 8, canon 7, Tex.Rev.Civ.Stat.Ann. Mr. Wiley’s testimony concerned the comparative values and assessments of lands in the Del Valle Independent School District. This testimony was based, in part, upon information obtained from the property tax record cards located in the office of the tax assessor-collector. Since appellant Zglinski, the tax assessor-collector, was a party to this lawsuit, appellants argue that a violation of DR 7-104, supra, occurred and the testimony should not have been admitted.

This argument is clearly without merit but since it is urged, we will address it briefly. Disciplinary Rule 7-104, supra, provides in part that:

“(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” (Emphasis added.)

No violation of DR 7-104, supra, occurred because the information sought to be obtained from appellant Zglinski, in her capacity as tax assessor-collector for the Del Valle Independent School District, was public information, and appellees were entitled to request such information by virtue of the Texas Open Records Act, Article 6252-17a, Tex.Rev.Civ.Stat.Ann. The single case cited by appellants in support of their position, Day & Zimmerman, Inc. v. Strickland, 483 S.W.2d 541 (Tex.Civ.App.—Texarkana 1972, ref’d n. r. e.), is inapposite to the instant case. Appellants’ points of error nos. 8 and 9 are hereby overruled.

Appellants’ second through seventh points of error may be summarized as attacking the trial court’s action because there was “no evidence” or, in the alternative, “insufficient evidence” to support the order granting a temporary injunction. An applicant need not prove that he will prevail upon a final trial on the merits in order for a temporary injunction to issue. Sun Oil Company v. Whitaker, 424 S.W.2d 216, 218 (Tex.Sup.1968). The sole question presented on appeal is whether the trial court clearly abused its discretion in granting or denying the application for temporary injunction. Oil Field Haulers Association v. Railroad Commission, 381 S.W.2d 183, 191 (Tex.Sup.1964). There is no abuse of discretion by the trial court in granting a temporary injunction where the applicant has pleaded and adduced evidence tending to prove (1) a probable right to the relief sought upon a final trial on the merits, and (2) probable injury in the interim. Sun Oil Company v. Whitaker, supra; Oil Field Haulers Association v. Railroad Commission, supra; Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). When an attack is made because an arbitrary plan or scheme of taxation has allegedly been employed, the taxpayer cannot prevail by merely showing the adoption of an arbitrary and illegal plan or scheme. Relief may be granted by the courts only where the taxpayer has shown that a fundamentally erroneous scheme or plan of taxation has been adopted, the application of which will substantially injure the litigant.

In the instant case, there is evidence in the record which tends to show that the taxing scheme employed by the Del Valle Independent School District was arbitrary and unconstitutional because the appraisal and assessment of unimproved rural property was not based upon its fair market value. A system of five categories had been established, each with an assigned range of values, which included (1) unimproved ranch land ($150-200 per acre), (2) rocky farmland ($200-225 per acre), (3) fair farmland ($225-275 per acre), (4) good farm and ranch land ($325-350 per acre), and (5) very good farm and ranch land ($400-500 per acre). This system had been employed in the past and was intended to be utilized again in 1977. In order to appraise the value of a particular tract of rural property, the property was plugged into one of the categories, and the resulting value determined by referring to the applicable range. The fair market value of the property was immaterial and not considered.

In addition, there was evidence adduced which tended to show that the application of this taxing scheme resulted in substantial injury to appellees. The fair market value of appellees’ land was approximately $400.00 per acre. On the basis of proposed appraised values, it was determined that under the present taxing scheme appellees’ land was appraised at 100-101% of fair market value. A real estate appraiser, T. E. Wiley, testified concerning a study he had conducted to determine the ratio of assessed value to fair market value in the Del Valle Independent School District. On the basis of his analysis of representative tracts of raw rural property, Mr. Wiley concluded that, as a whole, raw rural land in the Del Valle Independent School District was appraised at 33.97% of its fair market value. Under the present taxing scheme, appellees’ estimated tax burden would be $9,655.33. However, if an uniform and equal system of taxation based upon fair market value was employed, ap-pellee Hackett testified that appellees’ total tax burden would be reduced to approximately $5,000.00.

We believe that there is evidence in the record tending to show a probable right and probable injury. Appellants’ second through seventh points of error are hereby overruled.

Appellants’ tenth point of error contends that the trial court erred in extending the temporary restraining order against appellant three times prior to hearing the application for temporary injunction. Appellants cite no case authority in support of this position. In light of the fact that the temporary restraining order is no longer in force and appellants are presently under a temporary injunction, appellants tenth point of error is moot and therefore overruled.

Appellants’ eleventh through nineteenth points of error contend that the trial court erred in overruling nine special exceptions which appellants had directed at ap-pellees’ first amended petition. We have reviewed appellants’ points and find them to be without merit. Appellees’ petition was sufficient to inform appellants of the cause of action asserted and it was not necessary for appellees to plead the evidence upon which they would rely to sustain their allegations. Appellants’ points of error Nos. 11 through 19 are overruled.

We have reviewed all points of error raised by appellants and find them to be without merit. The order of the trial court granting the temporary injunction pending a final trial on the merits is affirmed.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    R. P. HOLT d/b/a Holt Underground Construction Company, Appellant, v. COMMUNITY DEVELOPMENT & CONSTRUCTION CORPORATION, Mitchell Development Corporation of the Southwest, Appellees.
    No. 8143.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.
    W. Steven Winter, Houston, for appellant.
    Ernest A. Coker, Jr., Conroe, for appel-lees.
   CLAYTON, Justice.

Plaintiff and defendant entered into a written contract under which plaintiff was hired as subcontractor to install a foundation for the Sales and Information Center located at The Woodlands, Texas. Plaintiff brought this action against defendant, the general contractor, to recover the balance due for “retainage” under the written contract and for extra work performed on behalf of defendant. Defendant answered by claiming off-sets against the plaintiff in an amount in excess of plaintiff’s claim. The trial was to the court, and a take nothing judgment was entered against plaintiff, from which judgment plaintiff appeals.

The trial court filed findings of fact and conclusions of law to the effect that (1) the amount of $7,416.05 as retainage under the contract was due and owing to plaintiff, (2) plaintiff was entitled to $2,217.69 for extra work performed, (3) defendant was required to expend $13,668.02 to correct defects in workmanship in work performed by plaintiff, and (4) the sum expended by defendant to correct defects in workmanship exceeds the amount for the retainage and extra work performed by plaintiff, and therefore (5) plaintiff shall take nothing against defendant.

Plaintiff-appellant complains of the admission into evidence of certain exhibits which defendant introduced proving up the off-set relied upon by defendant. All three exhibits were summaries of the records kept by defendant. The defendant relied solely upon these summaries to prove up the amount it contended was due defendant because of the curative work performed as a result of the defect in workmanship of the work performed by plaintiff. The summaries were prepared from the records, but none of the individual records were introduced.

There are well-established principles applicable to summaries of voluminous records. Since a summary is no more admissible than the underlying records, the admissibility of the underlying records must be established. Dallas Railway & Terminal Co. v. Guthrie, 146 Tex. 585, 210 S.W.2d 550 (1948). If the proper predicate has been laid for the admission of such records as business records in accordance with Tex.Rev.Civ.Stat.Ann. art. 3737e (Vernon Supp. 1978), there are other requirements to be met before summaries are admissible.

It has been specifically held by our Supreme Court in Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80, 92-93 (Tex.1976), that before summaries of such records can be introduced into evidence, “[W]e have required, as a condition, that the underlying records be brought into court or at least be made available to the opposing party in order that the correctness of the evidence may be tested by inspection or that the material for cross-examination may be available,” citing Lewis v. Southmore Savings Association, 480 S.W.2d 180 (Tex.1972); Dallas Railway & Terminal Co. v. Guthrie, supra. Accord, Star Corporation v. General Screw Products Co., 501 S.W.2d 374 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.).

The record before us does not show that any of the underlying records were produced in court or otherwise made available to plaintiff. Therefore, under the authorities cited above, the three exhibits in the form of summaries of records were not admissible, and the trial court should not have considered them for any purpose. These exhibits are the only evidentiary records used to prove up the amount of money claimed by defendant as off-sets. The only other evidence with reference to this subject came from a witness who gave his testimony by reading and referring to such exhibits. The exhibits from which he read were inadmissible, and the testimony in the form of reading from the exhibits before they were introduced was also inadmissible.

The error pointed out above requires a reversal, and we, therefore, do not consider the other points presented and urged by appellant.

There being error by the trial court in admitting the exhibits into evidence, the judgment of the trial court is reversed and the cause be remanded.

REVERSED and REMANDED.


text:
    McDONOUGH BROTHERS, INC., Appellant, v. T. C. BATESON CONSTRUCTION COMPANY, Appellee.
    No. 8149.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.
    John Skogland, San Antonio, for appellant.
    Roger A. Hansen, Dallas, for appellee.
   CLAYTON, Justice.

This breach of contract suit was brought by the plaintiff below, McDonough Brothers, Incorporated, against T. C. Bateson Construction Company, to recover damages for delays in accepting structural precast concrete beams which were to be used in construction of the University of Texas at San Antonio. Trial was to a jury which found that the defendant had breached its contract with the plaintiff by refusing to accept the beams within the contract period, and, as a result, the jury awarded plaintiff damages in the amount of $111,000. Defendant filed its motion for judgment notwithstanding the verdict. This motion was granted, and the trial court entered a take nothing judgment against the plaintiff.

Defendant was the prime contractor for the construction of phase one of the University of Texas at San Antonio. Plaintiff, pursuant to contract, supplied all of the concrete beams which were the structural floor and ceiling members in certain buildings being erected under the prime contract. On May 5, 1972, plaintiff submitted its proposal for the fabrication and delivery of the beams for $635,000, the final purchase price, which contained no reference to any specific time of delivery or any reference to any prior agreement. On May 23, 1972, defendant notified plaintiff of its intent to award an order “to supply all [beams] as required for the above mentioned project in the amount of $635,000. Formal order will be prepared and forwarded to you in the near future.” This purchase order was prepared and sent to plaintiff. The purchase order specified that delivery would be “FOB Jobsite,” “as required,” and “in accordance with Plans, Specifications. . .

Plaintiff manufactured some of the beams in January 1973. After manufacturing beams for a few months, however, it became apparent that construction of the University was not progressing at a rate which would warrant the use of the beams as the parties intended. The project was far behind schedule, and, instead of being used by defendant, the beams which were manufactured remained in storage at the plaintiff’s yard.

It is the contention of plaintiff that the parties had entered into an oral agreement that defendant would accept all of such beams prior to June 1973. It is undisputed that the beams were not delivered to the jobsite by June 1973. Actually they were not completely delivered until June 1975. Because of the delay in accepting the beams, plaintiff incurred additional cost in manufacturing the beams, and it was for this increase in costs the plaintiff sought to recover from defendant.

Appellant complains of error in entering judgment notwithstanding the verdict “because the essential elements which the plaintiff was required to establish in order to recover damages against the defendant were properly proven at the trial.”

The jury found that (1) defendant agreed to accept the beams at the jobsite by June 1973; (2) defendant refused to accept the beams by June 1973 and would have refused to accept them if they had been delivered; and (3) plaintiff was ready, willing, and able to deliver the beams and would have delivered the beams if they had been accepted.

To grant the motion for judgment notwithstanding the verdict, the trial court necessarily held there was no evidence of probative value to support the findings of the jury. In deciding this question, we must consider only the evidence and the inferences tending to support the findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Lucas v. Hartford Accident & Indemnity Co., 552 S.W.2d 796, 797 (Tex.1977).

Plaintiff argues there is evidence of probative value to support a finding “that defendant . . . refused to accept beams from the plaintiff in accordance with the terms of their agreement, and as a result, the plaintiff was not able to manufacture all of the beams within the period of time upon which the parties agreed.” We do not agree.

The only evidence in the record upon which plaintiff relies for proving defendant refused to accept the beams is testimony that defendant would not take the beams when manufactured and store them at defendant’s jobsite. The purchase order agreed to by both parties obligated plaintiff to supply the beams to defendant at the jobsite “as required” by defendant. There is no evidence of probative value of any agreement by defendant to take or accept the beams and to store them for any period of time on the jobsite. The question of storage as a part of the oral agreement was not submitted to the jury, and therefore the same was waived by plaintiff. See Grubb v. Grubb, 525 S.W.2d 38, 42 (Tex.Civ.App.—El Paso 1975, writ ref’d n. r. e.); Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529, 531 (Tex.1965); Tex.R.Civ.P. 279.

Under the terms of the agreement, defendant was under no obligation to take and store the beams. The evidence shows that a problem of “camber” or arching of the beams appeared after plaintiff had stored the beams for a period of time, and defendant refused to accept them for that reason. In addition to the “camber” problem, it is clear that in April 1973 production of the beams was stopped by plaintiff because of improper configuration of the holes or double “T” penetrations. On April 18, 1973, the invoices for beams then on hand were returned by defendant because the beams did not conform to specifications. Other evidence shows that production had been stopped until an agreement could be reached with reference to the camber and tolerances. Additional evidence shows that problems over which the defendant had no control existed, and production had not been completed until April 1974, one year after the contract period.

The evidence further shows that as late as September and October 1973, after the expiration of the contract period, defendant was urging plaintiff to “expedite manufacture as much as possible” and showing further that production would take approximately nine months to complete after October 1973. It is further shown that production and delivery was still not completed as late as April 1974.

In view of the foregoing we hold there is no evidence of probative value supporting a finding that defendant refused to accept beams from the plaintiff in accordance with the terms of their agreement.

There is no evidence of probative value showing the defendant violated any terms of the agreement between the parties. The trial court properly granted the judgment notwithstanding the verdict. Since this point is dispositive of this appeal, we do not consider the other points presented by plaintiff.

The judgment of the trial court is affirmed.

AFFIRMED.


author: ROBERTSON, Justice.

text:
    Betty Minyard STEIN v. Joseph E. FRANK et ux., and Larry Murdock, County Clerk, Dallas County, Texas, et al.
    Nos. 22620, 22621, 22624 and 22659.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 15, 1978.

      Betty Minyard Stein, pro se.
    Norman P. Hines, Jr., Dallas, for appel-lees.
    Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   ROBERTSON, Justice.

On motion for rehearing our prior opinion is withdrawn.

Petitioner, Betty Minyard Stein, filed four motions in this court seeking respectively to compel our clerk to file a transcript, to allow her to proceed without payment of costs, to have the justices of this court disqualify themselves, and for leave to file a writ of mandamus. Our clerk refused to file the transcript since petitioner did not tender a filing fee. Petitioner filed an affidavit of inability to pay costs with the trial court which was contested, but she filed an appeal bond before the contest was disallowed. We hold that once petitioner filed her appeal bond, she abandoned her affidavit and thus, her appeal was perfected when the bond was filed, and she is not entitled to proceed without payment of costs. We also hold that no pertinent grounds are set out in her motion for disqualification, and finally, that petitioner has failed to present to this court any grounds upon which mandamus would lie. Accordingly, we deny all motions.

Petitioner filed her affidavit of inability to pay costs in the trial court on August 2, 1978. The contest was filed on August 3,1978, and the hearing was set for August 11, 1978, and subsequently continued to September 8, 1978. On August 11, 1978, appellant filed her appeal bond. The trial court denied the contest on August 18, 1978. As a general rule, an appeal can only be perfected once, either by the giving of a cost bond or by the filing of a proper affidavit of inability to pay costs, each method being exclusive of the other. Tex.R.Civ.P. 355; De Miller v. Yzaguirre, 143 S.W.2d 425 (Tex.Civ.App.—El Paso 1940, writ ref’d). In De Miller, appellant filed an affidavit of inability to give an appeal bond which was timely contested. At the hearing on the contest, the trial court’s order stated that the appellant had procured a bond and that appellant would file it on the same day as the contest. The order then denied the contest. The court held that such action was an abandonment of appellant’s appeal by affidavit as to inability. We agree and hold that appellant properly perfected her appeal by filing an appeal bond on August 11, 1978. The trial court lost jurisdiction over the cause at that time under Tex.R.Civ.P. 363, because the appeal was perfected when the appeal bond was filed. The trial court then had no further jurisdiction. Panhandle Construction Co. v. Lindsey, 123 Tex. 613, 72 S.W.2d 1068 (1934). Consequently, the order of August 18 overruling the contest had no effect. For similar reasons, the filing of the appeal bond effectively precludes her from proceeding without payment of costs.

Petitioner also seeks to have the three justices of this court disqualify themselves. She says we are biased because we decided a previous case against her. This fact, even if true, does not show bias, and thus, the motion is denied.

With respect to petitioner’s motion to file a petition for writ of mandamus, petitioner seeks a writ so “that Judge Coker will not destroy certain records, including bills of exceptions, and affidavits.” Leave is denied because the motion fails to show grounds for a writ of mandamus. Under Tex.Rev.Civ.Stat.Ann. arts. 1823,1824 (Vernon 1964), courts of civil appeals may issue mandamus only in protection of their appellate jurisdiction or to order a trial judge, to proceed to trial and judgment. Crofts v. Court of Civil Appeals for the Eighth Supreme Judicial District, 362 S.W.2d 101 (Tex.1962); Johnson v. Court of Civil Appeals for the Seventh Supreme Judicial District of Texas, 162 Tex. 613, 350 S.W.2d 330 (1961); Brown v. American Finance Co., 432 S.W.2d 564 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.); Julian v. Hoffman, 520 S.W.2d 935 (Tex.Civ.App.—Dallas 1975, no writ). The jurisdiction exercised by this court in granting the writ must therefore come within the purview of the above two statutes.

It is apparent that petitioner is complaining of an action of a trial court that relates to Tex.R.Civ.P. 372. She has not alleged or shown that she has complied with the procedure enumerated therein and as stated in Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex.1978). There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves. Litigants who represent themselves must comply with the applicable procedural rules. The writ of mandamus, being a legal remedy clothed with principles of equity, is available to compel action on the part of those charged with positive duties because of their official position. Smith v. Grievance Committee, State Bar of Texas for District 14-A, 475 S.W.2d 396 (Tex.Civ.App.—Corpus Christi 1972, no writ). However, mandamus will not issue to compel a public official to perform an official act unless the official has refused to perform it and the record shows the relator’s right to have the act performed. See Hendricks v. Board of Trustees of Spring Branch Independent School District, 525 S.W.2d 930 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.); City of Ingleside v. Johnson, 537 S.W.2d 145, 150 (Tex.Civ.App.—Corpus Christi 1976, no writ).

Since petitioner has not shown that she falls within the ambit of our jurisdiction to issue a writ of mandamus, her motion for leave is denied.

Motions denied.


author: REYNOLDS, Justice.

text:
    STATE of Texas ex rel. Hugh RUSSELL, Appellant, v. Kerry KNORPP, Appellee.
    No. 8957.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 20, 1978.
    Rehearing Denied Jan. 15, 1979.

      Thomas A. Curtis, Dist. Atty., John B. Reese, Asst. Dist. Atty., Amarillo, for appellant.
    George E. Gilkerson, Lubbock, Kerry R. L. Knorpp, Amarillo, for appellee.
   REYNOLDS, Justice.

Unsuccessful in its trial court action to remove the Potter County Attorney from office for alleged official misconduct, the State of Texas appeals from a take-nothing judgment rendered on a jury verdict. Because the judgment must be sustained on a theory of law peculiarly applicable to this action, we affirm.

The State of Texas, acting through the district attorney of the 47th Judicial District upon the relation of Hugh Russell and by the authority of Tex.Rev.Civ.Stat.Ann. arts. 5970, et seq. (Vernon 1962), instituted this action of 10 August 1977, seeking to remove Kerry Knorpp from the office of county attorney of Potter County for alleged acts of official misconduct. As its pleadings were cast for trial, the state alleged the specifics of twenty-four occasions from 17 November 1974 to 21 April 1976 on which it averred that Knorpp received and misapplied, or secreted with intent to misapply, sums of money belonging to Potter County which Knorpp had requisitioned for specific purposes and had deposited the portions unused for those purposes into his personal bank account for his personal use.

Knorpp, who held the office of county attorney of Potter County during the times of the alleged official misconduct, documented his re-election to that office at the 2 November 1976 general election. By pleadings and sundry motions, Knorpp interposed, among other matters, the “prior-term doctrine” of Article 5986. That article reads:

No officer in this State shall be removed from office for any act he may have committed prior to his election to office.

As used in the statute, the phrase “election to office” has been held to also mean the re-election to the term of office from which the officer is sought to be ousted. Reeves v. State ex rel. Mason, 114 Tex. 296, 267 S.W. 666, 669 (1924). The ultimate thrust of Knorpp’s procedural motions was that Article 5986 barred his removal from office for acts charged to have been committed by him during his prior term.

The state countered that Article 5986 has no application unless and until Knorpp shows that the elements of the “forgiveness doctrine” are present. The state references the applicability and elements of the “forgiveness doctrine” to the language of In re Laughlin, 153 Tex. 183, 265 S.W.2d 805, 808 (1954), stating:

Neither may removal [of judges] be predicated upon acts antedating election, not in themselves disqualifying under the Constitution and laws of this State, when such acts were a matter of public record or otherwise known to the electors and were sanctioned and approved or forgiven by them at the election. This holding is in harmony with the public policy declared by the Legislature with respect to other public officials. Article 5986, R.C.S.

Under its view of this language and the recognition given it through the progeny of Laughlin, the state proposed that Knorpp had to demonstrate that the acts charged to have been committed by him before his re-election were known to the electorate and sanctioned or forgiven by them at the time of his re-election.

The trial court declined to accept the Article 5986 language as a bar to removal. Instead, the court submitted the twenty-four causes alleged for removal to the jury and, over the objection of both the state and Knorpp, gave this instruction:

The law provides that a public official may not be removed for alleged acts of misconduct occurring prior to his last election provided the public or a substantial portion thereof knows about such alleged acts prior to the election. You are instructed that before you may answer any of the plaintiffs [state’s] grounds of removal “yes” you must believe from a preponderance of the evidence that the public did not know of such alleged misconduct before November 2, 1976.

The jury answered “No” to each cause submitted, signifying that, under the court’s charge, it was not persuaded the state had shown by a preponderance of the evidence that Knorpp was guilty of any alleged act of official misconduct. The court rendered judgment on the verdict, decreeing that the state recover nothing.

Appealing, the state asserts that eleven errors, including the giving of the erroneous instruction, so infected the trial that a reversal is required. Before consideration is given to the state’s contentions of trial error, it must be determined whether Article 5986 bars the attempted removal for prior-term acts.

The Texas Constitution specifies that county officers, including county attorneys, may be removed from office for official misconduct as well as for other listed reasons. Tex.Const. art. V, § 24. The constitution also mandates that the legislature shall provide by law for the trial and removal from office of all officers of this state, the modes for which have not been provided in the constitution. Tex.Const. art. XV, § 7. Pursuant to this direction, the legislature has enacted Tex.Rev.Civ.Stat. Ann. art. 5961, et seq. (Vernon 1962), providing for the removal of state officers. Article 5970, et seq. set forth the modes for trial and removal from office of a county attorney and other officers for, among other listed reasons, official misconduct. The state instituted this action to remove Knorpp from office under this authority, a part of which is Article 5986 upon which Knorpp relies as a bar to removal.

Prior to the enactment of Article 5961, et seq., the legislature, operating under the constitutional mandate, had enacted Article 6030, et seq. providing for the removal of officers for certain acts of official misconduct. Article 6055, one of that series, then read: “No officer shall be prosecuted or removed from office for any act he may have committed prior to his election to office.” The state invoked this statutory authority in Reeves v. State ex rel. Mason, 114 Tex. 296, 267 S.W. 666 (1924), for the removal of a county sheriff during his second term for offenses committed during both the first and second terms. The Supreme Court, after commenting that “the Legislature did not idly enact the article [Article 6055], and that it should be given ‘force’,”held:

We construe article 6055 to mean that an officer cannot be removed for acts committed prior to his election to the term of office he is holding.
* * * * * *
[T]he admission in evidence of other and separate acts charged and found by the jury to have been committed during the first term in office . . . should not have been admitted for any purpose.

267 S.W. at 699. Although, as the state notes, the Court did not confront the issue whether the first term acts were known to the electors and sanctioned by them, the logical corollary of the Court’s holdings is that the efficacy of the statute is unaffected by that issue, for, if the “forgiveness doctrine” were material to the operation of the statute, then evidence of the prior-term acts would have been admissible. However, the Court was definite in its holding that evidence of the prior-term acts was not admissible for any purpose.

After the Reeves decision, the legislature undertook the 1925 revised codification of the statutes. The language of Article 6055 became Article 5986. Thereafter in 1939, the legislature re-enacted Article 5986 in its present language.

A familiar principle in our law is that revised statutes are presumed to be enacted by the legislature with full knowledge of the existing conditions of the law and subj'ect thereto unless the contrary is clearly established. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W .2d 863, 866 (Tex.1975). In revising Article 5986, the legislature used plain and simple words to direct that no state officer shall be removed from office for acts committed prior to his election to office. The direction is unqualified. The presumption, then, is that the legislature intended the re-enactment to apply as it had been judicially construed in Reeves v. State ex rel. Mason, supra. If the Reeves construction was unacceptable to the legislature, a simple remedy was available when Article 5986 was re-enacted fifteen years later. But the legislature re-enacted the statute in the same words which had been construed, and it would be overreaching for us to say that the re-enactment has a far different meaning than that given it previously by the Supreme Court.

Nevertheless, the state says that subsequent to Reeves v. State ex rel. Mason, supra, the Supreme court has engraft-ed the elements of the “forgiveness doctrine” on Article 5986 by its opinions in In re Laughlin, 153 Tex. 183, 265 S.W.2d 805 (1954), In re Brown, 512 S.W.2d 317 (Tex.1974), Matter of Carrillo, 542 S.W.2d 105 (Tex.1976), and in Matter of Bates, 555 S.W.2d 420 (Tex.1977). Those cases concerned removal proceedings brought against district judges under constitutional provisions to which Article 5986 does not apply. Matter of Carrillo, supra, at 110; Matter of Bates, supra, at 427. The Laughlin proceedings centered around Tex.Const. art. XY, § 6, while the proceedings in Brown, Carrillo and Bates involved Tex. Const. art. V, § 1-a, to which any application of the Laughlin “forgiveness doctrine” has been reserved for further consideration. Matter of Bates, supra, at 427. However, in removal proceedings brought against officers under the statutory authority of which Article 5986 is a part, Article 5986 bars removal for acts committed prior to the election to the term of office from which the officeholder is sought to be removed. Reeves v. State ex rel. Mason, supra, 267 S.W. at 669. Thus, where Article 5986 applies under the present state of the law, it cannot be subjected to the “forgiveness doctrine” announced in In re Laughlin, supra.

Moreover, Matter of Bates, supra, at 428 particularly pointed out that the Laughlin doctrine is limited to those acts antedating election which are “not in themselves disqualifying under the Constitution and laws of this State.” The pre-election acts for which the state sought to remove Knorpp constitute official misconduct which specifically is made “disqualifying [i. e., a cause for removal] under the Constitution [Tex. Const. art. V, § 24] and laws [Article 5970] of this State.” Consequently, the “forgiveness doctrine” does not apply to the official misconduct charged and, hence, the doctrine as delineated in In re Laughlin, supra, can have no application to the undisputed facts in the present action.

Still, the state insists that to extend the protection of Article 5986 to the officeholder without requiring absolution by a knowing electorate “would make Article 5986 a shield of injustice and make a mockery of elections in a democratic society.” If so, it is a matter for legislative action, for courts must give effect to the clear meaning of a statute made by the legislature without regard to the policy or wisdom of the act or the results it may entail, Board of Insurance Com’rs. v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906, 909 (1944), and the courts may not write exceptions into a statute so as to make it inapplicable under special factual circumstances not mentioned in the statute. Jefferson County Drainage District No. 6 v. Gary, 362 S.W.2d 305, 307-08 (Tex.1962).

Thus, given the force of the Article 5986 language and its construction by the Supreme Court in Reeves v. State ex rel. Mason, supra, the statute bars removal of Knorpp after his re-election for alleged acts of official misconduct committed before his re-election, and the take-nothing judgment must be sustained on this account. Cf., Custom Leasing, Inc. v. Texas Bank & T. Co. of Dallas, 516 S.W.2d 138, 142 (Tex.1974), for the command that “[i]t is the duty of the appellate courts to sustain the judgment of the trial court if it is correct on any theory of law applicable to the case.”

Under the circumstances, the state is not entitled to judgment under any view of the pleadings and evidence, and any jury trial proceedings become immaterial to the proper judgment to be rendered in this action. Whittenburg v. Miller, 139 Tex. 586, 164 S.W.2d 497, 504 (1942). See also Vogel v. Allen, 118 Tex. 196, 13 S.W.2d 340, 341 (1929), and Edmiston v. Texas & N. O. R. Co., 135 Tex. 67, 138 S.W.2d 526, 528-29 (1940), for the principle that where, under no view of the pleadings and evidence, the plaintiff is entitled to recover, the submission to the jury and its findings are wholly immaterial and may be disregarded because they could form no basis for judgment. Accordingly, consideration of the state’s contentions of trial error is pretermitted.

The judgment of the trial court is affirmed.

      . Unless otherwise noted, all articles cited are articles of the Texas Revised Civil Statutes.

      . The state objected to the giving of the instruction on the ground that no evidence was adduced of any knowledge of the electors of the misapplication of the funds, and to the wording of the instruction on the ground that it incorrectly placed the burden upon the state rather than upon Knorpp. Knorpp objected to the giving of the instruction because it, in essence, was a total misstatement of, and a denial of the defense provided by, Article 5986.


author: PER CURIAM.

text:
    Linda Sue WRIGHT, Relator, v. Harold VALDERAS, District Judge, et al., Respondents.
    No. 20109.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 21, 1978.

      Jerry D. O’Neal, Weatherford, for petitioner.
    Odell L. McBrayer, Fort Worth, for respondents Thomas Birt Wright and Juan Wright.
   PER CURIAM.

. Because of the ever apparent want of convenience to attorneys in ascertaining requirements of the law relative to foundation for consideration of a petition instituting an original proceeding in an appellate court, we set down for hearing the petitioner’s Motion for Leave to File Petition for Mandamus.

In general it has been found that all members of the bar understand that a Court of Civil Appeals is vested with jurisdiction to act upon original proceedings only in the protection of its appellate jurisdiction. (For our discussion we disregard habeas corpus proceedings.) Further, by statute authority is conferred upon Courts of Civil Appeals to direct a Judge of the District and County Courts to proceed to trial and/or judgment. V.A.T.S. Art. 1824 “(Courts of Civil Appeals) — -May mandamus district courts.”

It is generally understood that any original proceeding desired to be instituted in a Court of Civil Appeals must be presented in the form of a petition which is presented to the clerk; and, also, that such petition be accompanied by a motion for leave to file such petition. The clerk files the motion; to have such done is the right of the petitioner. See T.R.C.P. Rule 383 (PROCEEDINGS IN THE COURTS OF CIVIL APPEALS) — Original Proceedings”.

However, the many instances in which members of the bar fail to be prepared to tender the required check or cash to cover the clerk’s fee for the filing of the motions result in untoward delays. One who desires to prosecute an original proceeding should understand that a fee will be required to file the motion; that in the event such motion, should be granted an additional fee will then be required upon filing the petition.

In the decisions to be made by the court upon whether or not leave should be granted the petition and attachments made a part thereof (though not yet permitted to be filed) are examined as a part of the determination process. It is in the failure of the petitions or in the proof of facts (as such is made in appellate courts) essential to the relief sought therein that so many petitioners, otherwise entitled to the “ear of the court”, fail even to obtain leave to file their petitions.

Since the desired original proceeding was for mandamus we will speak, henceforth, to that form of original proceeding.

In mandamus actions greater certainty of the pleadings and the facts to be established by modes appropriate in appellate courts are required. These, generally, are by authenticated copies of pertinent papers from the clerks of the district or county courts, certificates of court officials including the judge, and by affidavits in verification of the petition, of material facts made a part of the petition, and of the exhibits desired to be considered as evidence.

Every fact necessary to show why the relator is entitled to the relief sought must be set out in the petition clearly, fully, and unreservedly, by direct and positive allegations. The facts material to the proceeding must be presented by such a positive statement of knowledge by affiant(s) as would constitute a basis for a charge of perjury if the facts were found to be untrue.

In the motion for leave to file under test we seek in the petition and instruments made a part of it (which petitioner desires we grant leave to file) information upon the pleadings which are on file in the district court of Judge Valderas. When we do this we find no authenticated copy of any court paper by which we could determine jurisdiction, venue, prayer for relief by any litigant, nor issues made or desired to be made in the trial court. There is representation that in a certain numbered and styled cause pending in the court no judgment or temporary orders had been signed and entered by Judge Valderas though pronounced by him on May 9, 1978 and against the petitioner; and there is the affidavit of the Deputy District Clerk specifically assigned to Judge Valderas’ court to the effect that no judgment or temporary orders had, as of May 7, 1978, been signed or delivered to be entered in the records of the cause of the Office of the District Clerk. (Noticed is that Petition for Leave to File was by the clerk of this court received December 11,1978. Thus the Deputy Clerk’s affidavit actually proves nothing material for our consideration, the time named in the affidavit having no necessary relation to the date petitioner’s motion was filed.)

Furthermore noticed is that no docket sheet is presented, and no certificate — or even letter — of the trial court in explanation of the reasons for action or non-action of which the petitioner believes herself aggrieved. Further, there is no affidavit showing request made of the court therefor and that there has been refusal of Judge Valderas to accommodate in making proper proof for presentation, to this Court. The presumption, in the absence of any proof to the contrary, is that a trial judge is dispassionate and unbiased, anxious to aid any complainant in obtaining action of the appellate court to which there might be entitlement, even if the result would be that he be commanded upon some duty by Writ of Mandamus. That presumption obtains here as applied to Judge Valderas.

By reason of the foregoing petitioner must be held to have failed to establish any right to be heard on her original proceeding.

Motion for leave to file petition for mandamus is denied.


author: NYE, Chief Justice.

text:
    Ramsey Ramiro MUNIZ, Appellant, v. STATE of Texas, Appellee.
    No. 1415.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 21, 1978.
    Rehearing Denied Jan. 11, 1979.

      Armando Cavada, Raul Garcia, Garcia, Cavada, Gutierrez & Garcia, Alice, for appellant.
    Linda A. Marchesseau, State Bar of Texas, Austin, for appellee.
   OPINION

NYE, Chief Justice.

This is a disbarment action. The State of Texas, acting through the Grievance Committee for District 11-A, instituted this disbarment suit against Ramsey Ramiro Muniz in the District Court of Nueces County. The trial court granted summary judgment in favor of the Grievance Committee disbarring Muniz, and enjoining him from the future practice of law. Muniz appeals.

On April 11,1977, the Grievance Committee filed a formal complaint against defendant Muniz, (an attorney licensed in the State of Texas), seeking mandatory disbarment pursuant to Article 320a-l § 6, Tex. Rev.Civ.Stat.Ann. (1973). The Grievance Committee alleged that the defendant had been convicted of the following three federal felony offenses all involving moral turpitude: 1) unlawfully conspiring to import marijuana; 2) conspiring to possess with intent to distribute marijuana; and 3) jumping bond. Certified copies of the federal court judgments and commitment orders for these three convictions were attached to the petition. In accordance with these allegations, the Grievance Committee prayed that the defendant be disbarred. Defendant Muniz filed a general denial.

On March 23, 1978, the Grievance Committee filed a motion for summary judgment stating there were no genuine issues of fact to be decided. The motion alleged that the trial court was required to enter a judgment disbarring the defendant because the summary judgment proof established as a matter of law that defendant had been convicted of three felony offenses involving moral turpitude. At the hearing on plaintiff’s motion, the trial court had before it the pleadings of both plaintiff and defendant; plaintiff’s motion and supporting certified copies of the judgment and commitment orders; plaintiff’s request for admissions, and the trial court’s order deeming certain facts admitted. Defendant did not reply in opposition to plaintiff’s motion for summary judgment.

The summary judgment proof established the following facts, among others:

1) Muniz was convicted in the United States District Court for the Western District of Texas pursuant to his plea of guilty entered on March 2, 1977, of willfully, knowingly and unlawfully conspiring, confederating and agreeing with others to import marijuana, a Schedule I controlled substance, in violation of 21 U.S.C.A. § 963 (1973). He was committed for a total of 15 years, 5 years imprisonment and 10 years parole. (Cause No. SA-76-CR-176).

2) He was also convicted pursuant to his plea of guilty entered on March 18,1977, of conspiring to possess with the intent to distribute approximately 1,100 pounds of marijuana in violation of 21 U.S.C.A. §§ 846, 2 (1973) and committed to custody for a total of 5 years to run concurrently with the above sentence. (Cause No. 76-C-245).

3) Muniz was further convicted in the United States District Court pursuant to his plea of guilty entered on March 18, 1977 of bond jumping in violation of 18 U.S.C.A. § 3150 (1973). He was committed for a total of 5 years to run concurrently with the above sentences.

4) Muniz did not appeal from the above listed convictions and the sentences imposed were not probated.

5) Muniz was an attorney duly licensed in the State of Texas and a resident of Nueces County, Texas.

On July 20,1978, the trial court entered a judgment which granted the Grievance Committee’s motion for summary judgment and disbarred Muniz from the practice of law based on the three federal felony convictions involving moral turpitude. In addition, the trial court entered a permanent injunction which, in essence, enjoined defendant from future participation in certain legal work. Defendant brings forward two points of error on appeal complaining of the trial court’s action in granting plaintiff’s motion for summary judgment and in entering the permanent injunction.

In passing upon the points raised on this appeal, we shall be guided by the rules concerning summary judgments established by our State Supreme Court and Rule 166-A, Texas Rules of Civil Procedure. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.Sup.1970); Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965); State Bar of Texas v. Semaan, 508 S.W.2d 429, 433 (Tex.Civ.App.-San Antonio 1974, writ ref’d n. r. e.).

Muniz was disbarred pursuant to Section 6 of the Texas State Bar Act, Tex.Rev.Civ. Stat.Ann. art. 320a-l (1973) which provides, in relevant part, as follows:

“No disbarment proceeding shall be instituted against any attorney except in the district court located in the county of said attorney’s residence, nor shall any attorney be suspended until such attorney has been convicted of the charge pending against him, in a court of competent jurisdiction in the county of such attorney’s residence. Provided, however, upon proof of conviction of an attorney in any trial court of any felony involving moral turpitude . . . the district court of the county of the residence of the convicted attorney shall enter an order suspending said attorney from the practice of law during the pendency of any appeal from said conviction. An attorney who has been given probation after such conviction shall be suspended from the practice of law for the period of his probation. Upon proof of final conviction of any felony involving moral turpitude . where probation has not been given or has been revoked, the district court of the county of the residence of the convicted attorney shall enter a judgment disbarring him.’’ (Emphasis added).

Muniz contends that “[t]he trial court erred in granting Motion for Summary Judgment disbarring duly licensed attorney upon proof of convictions in federal court prosecutions for: (1) conspiring to import marijuana, (2) conspiring to possess with intent to distribute marijuana, and (3) bond jumping.” Muniz’ major argument, under this point is that none of the enumerated felonies for which he was convicted are felonies involving moral turpitude.

The precise question of whether any of the crimes for which Muniz was convicted are felonies involving moral turpitude for the purpose of mandatory disbarment has not been addressed previously by the Texas courts. Other jurisdictions, however, considering similar questions, have established some general guidelines.

Moral turpitude has been defined as anything done knowingly contrary to justice, honesty, principle, or good morals. In re Pontarelli, 393 Ill. 310, 66 N.E.2d 83, 85 (1946); In re Disbarment of Coffey, 123 Cal. 522, 56 P. 448 (1899); In re O’Connell, 184 Cal. 584, 194 P. 1011 (1920); Smith v. State, 490 S.W.2d 902, 907 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.). It has also been defined to be an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general. Braverman v. Bar Association of Baltimore City, 209 Md. 328, 121 A.2d 473 (1956); In re O’Connell, 184 Cal. 584, 194 P. 1011 (1920); John’s Vending Corp. v. Secretary of Revenue, Etc., 3 Pa.Cmwlth. 658, 284 A.2d 834, 837 (1971). The term implies something immoral in itself, regardless of whether it is punishable by law. The doing of the act itself, and not its prohibition by statute, fixes the moral turpitude. Cf. In re O’Connell, 184 Cal. 584, 194 P. 1011 (1970). Immoral conduct is that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community. In re Hicks, 20 P.2d 896 (Okl.Sup.1933); Smith v. State, 490 S.W.2d 902 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.).

Generally, in determining whether a crime committed by an attorney involves moral turpitude, consideration must be given to the fact that the illegal act was committed by an attorney as compared to a layman. An attorney must be held to a more strict standard than the layman because of the position of public trust which he enjoys. As such, his standard of conduct must be high. A lawyer assumes a position of responsibility to the law itself, and any serious disregard of the law by him or her is much more grave than that by the layman who may breach the law innocently or otherwise. A lawyer has always been regarded as an officer of the court. He is charged with obedience to the laws of this State and of the United States. Cincinnati Bar Association v. Shott, 10 Ohio St.2d 117, 226 N.E.2d 724, 733 (1967); In re Clark’s License Suspension, 52 Cal.2d 322, 340 P.2d 613 (1959); In re Anderson, 195 N.W.2d 345, 348 (N.D.1972); Matter of Fosaaen, 234 N.W.2d 867, 869 (N.D.1975); People v. Wilson, 176 Colo. 389, 490 P.2d 954, 955 (1971). An attorney is also charged with the responsibility to maintain due respect for the judicial system and its rules of law. State v. Hendrickson, 139 Neb. 522, 298 N.W. 148 (1941). The question of whether a particular crime involves moral turpitude is to be determined by a consideration of the nature of the offense as it bears on the attorney’s moral fitness to continue in the practice of law. Braverman v. Bar Association of Baltimore City, 209 Md. 328, 121 A.2d 473, 481 (1956); In re Rothrock, 16 Cal.2d 449, 106 P.2d 907 (1940). As stated by the United States Supreme Court in Ex Parte Wall, 107 U.S. 265, 274, 2 S.Ct. 569, 576, 27 L.Ed. 552 (1882):

“. . .Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, . argues recreancy to his position and office, ... It manifests a want of fidelity to the system of lawful government which he has sworn to uphold and preserve. . . . ”

In 1971, the Texas Supreme Court adopted a new Texas Code of Professional Responsibility for Lawyers, Title 14 App. Art. 12 § 8 (1973). Canon 1 provides: “A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession.” Ethical consideration 1-5 cautions:

“A lawyer should maintain high standards of professional conduct and should encourage fellow lawyers to do likewise. He should be temperate and dignified, and he should refrain from all illegal and morally reprehensible conduct. Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to the law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.”

Disciplinary rule 1-102 relating to the same Canon states:

“(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
******
(4) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”

Attorneys who practice law in Texas are therefore charged with a very high standard of conduct not only with regard to the public generally but also in their relationships with the legal and judicial system.

One of the felonies for which Muniz was convicted was the felony of bond jumping in violation of 18 U.S.C.A. § 3150 (1969). This section provides in relevant part, as follows:

“Whoever, having been released pursuant to this chapter, willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari after conviction of any offense, be fined not more than $5,000 or imprisoned not more than 5 years, or both, or . .

Not all breaches of bail bond conditions give rise to criminal liability under this section. Only failures to appear as judicially ordered constitute bail jumping. U. S. v. Bright, 541 F.2d 471 (5th Cir. 1976), rehearing denied, 544 F.2d 518, cert. denied, 430 U.S. 935, 97 S.Ct. 1560, 51 L.Ed.2d 780. In addition, mere proof of nonappearance, standing alone, is not sufficient to establish that the defendant who is charged with violating this section has acted “willfully in failing to appear” nor is a prima facie case made by the introduction of evidence that defendant violated a condition of his bond. U. S. v. Reed, 354 F.Supp. 18 (D.Mo.1973).

However by pleading guilty to the criminal indictments in question, Muniz admitted as true all of the necessary allegations to constitute violations of the criminal laws under which he was charged. See McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Littlejohn v. Hiatt, 197 F.2d 334 (5th Cir. 1952); State v. Nelson, 551 S.W.2d 433, 435 (Tex.Civ.App.-San Antonio 1977, writ ref'd n. r. e.). Defendant’s guilty plea therefore established an overt act of intentionally and willfully failing to appear before the court or a judicial officer as ordered a violation of a condition for his release from confinement under the bond pursuant to Chapter 207 of the U.S.C.A. Title 18.

All citizens, of course, are charged with the responsibility of abiding by the laws of the respective states and of the United States. An attorney, however, has additional moral and legal responsibility associated with his position of trust as an officer of the court. It is clear to us that Muniz’ failure to appear as required before the designated court or judicial officer not only constituted a felony under federal law but also constituted a direct violation of the trust and confidence placed in him as an officer of the court. It is difficult to consider an offense committed by an attorney who is an officer of the court which is more destructive and prejudicial to the administration of justice than for one to willfully violate a court ordered appearance and thereby becoming a fugitive from justice. Muniz’ failure to appear as required adversely reflects on his moral character to continue the practice of law. We conclude that Muniz was convicted of a felony involving moral turpitude as a matter of law. In re Suspension of Tindall, 60 Cal.2d 469, 34 Cal.Rptr. 849, 386 P.2d 473 (1963); In the Matter of H. Albert Hyett, an Attorney at Law, 61 N.J. 518, 296 A.2d 306 (1972); In re Goode, 58 N.J. 420, 278 A.2d 206 (1971); In re Turco, Jr. v. Monroe County Bar Assoc., 46 A.D.2d 490, 363 N.Y.S.2d 349, 351, 360 (1975); In re Birrell, 13 A.D.2d 220, 215 N.Y.S.2d 293, 294 (1961).

Muniz’ plea of guilty resulting in his final conviction of the felony offenses of willfully, knowingly and unlawfully conspiring with others to import a Schedule I controlled substance and his final conviction on his self-imposed guilty plea of conspiring to possess with intent to distribute approximately 1,100 pounds of a controlled substance are also felonies involving moral turpitude. This type of conduct affects the morals of the community in which he lives. It tends to lessen public confidence in the legal profession. We believe it to be morally reprehensible for a licensed attorney to be involved in this type of activity.

Muniz argues, however, that the trial court’s judgment disbarring him is invalid because the Texas Penal Code does not contain prohibitions similar to those for which he was convicted under federal law. This contention is without merit. The language of section 6 above quoted expressly provides that “upon conviction . . .in any trial court of any felony involving moral turpitude . . Section 6, by its express terms, does not limit the trial court to a Texas state court nor the felony to a Texas state felony. We hold that the term “felony involving moral turpitude” is not restricted to a felony committed in violation of state law. See State v. Estes, 130 Tex. 425, 109 S.W.2d 167 (Tex.Comm’n.App.1937, opinion adopted); State v. Nelson, 551 S.W.2d 433 (Tex.Civ.App.—San Antonio 1977, writ ref’d n. r. e.). This view is consistent with the views other state courts considering the question. Compare: In re Craig, 12 Cal.2d 93, 82 P.2d 442 (1938).

Muniz also contends that his disbarment should be set aside because the trial court abused its discretion in imposing such a severe punishment. Muniz’ pleas of guilty and his final conviction, without probation, of the felonies involving moral turpitude brings this case within the mandatory disbarment provisions contained in section 6 of the State Bar Act. Sanctions imposed in disciplinary proceedings for misconduct other than a final felony conviction involving moral turpitude are discretionary matters within the province of the trial court. Cf. State v. Ingram, 511 S.W.2d 252 (Tex.Sup.1974). But here abuse of discretion is not an issue. See State v. Nelson, 551 S.W.2d 433 (Tex.Civ.App.—San Antonio 1977, writ ref’d n. r. e.). Where the fact of a final conviction of a crime involving moral turpitude is grounds for disbarment, proof of the conviction may be made by simply introducing into evidence the records of the court rendering the conviction. See State v. Laughlin, 286 S.W.2d 278, 280 (Tex.Civ.App.—San Antonio 1955, writ ref’d n. r. e.); cf. State v. Nelson, 551 S.W.2d 433 (Tex.Civ.App.—San Antonio 1977, writ ref’d n. r. e.). The trial court properly granted the Grievance Committee’s motion for summary judgment disbarring Muniz. Appellant’s point of error one is overruled.

In point of error two, Muniz complains of the trial court’s injunction as being too broad. The judgment pertinent to this point of error states as follows:

“It is further ORDERED, ADJUDGED, and DECREED that the Defendant, Ramsey Ramiro Muniz, be and is hereby permanently enjoined from doing any legal work whatsoever, including office work, investigative work, preparing legal papers or other legal documents or any other matter in connection with any legal work performed by him or any other attorney, provided that nothing herein contained shall be construed to prohibit Defendant from participating in the preparation of legal papers or other legal documents or other matters including legal work when such legal matters are prepared or participated in by him for his own proprietary interest in any transaction involving his own property, and provided further that nothing herein contained shall be construed to prohibit Defendant from doing any act or thing which might properly and legally be done by any other person not licensed to practice law in the State of Texas nor shall he office with or share office space with any one who is licensed to practice law in the State of Texas.”

Muniz’ contention that the trial court was without authority to enter any injunction in connection with disbarment proceedings has been rejected. See Arnett v. State, 304 S.W.2d 386-390 (Tex.Civ.App.—Eastland 1957, writ ref’d n. r. e.). It might be said that the necessity for an injunction in connection with this disbarment proceeding is unnecessary because the disbarment itself had the effect of revoking Muniz’ license to practice law in the State of Texas. It is true that the act of disbarment does of itself prohibit a former attorney from practicing law, receiving legal fees and from holding himself out as an attorney. Therefore, the trial court’s injunction should, if entered at all, enjoin Muniz from engaging in these prohibited activities. This is expressly set out in the State Bar Act, Tex. Rev.Civ.Stat.Ann. art. 320a-l § 3 (Supp. 1978). Section 3 provides, in relevant part, as follows:

All persons who are now or who shall hereafter be licensed to practice law in this State shall constitute and be members of the State Bar, and shall be subject to the provisions hereof and the rules adopted by the Supreme Court of Texas; and all persons not members of the State Bar are hereby prohibited from practicing law in this state. . . . ”

The injunction as written by the trial court may be overly broad and contain some inconsistencies as to what activities Muniz is prohibited from engaging in the future.

We note that the State Bar Rules also contain provisions to suppress, prohibit or prevent the unauthorized practice of law. See Title 14 App. art. 13 §§ 37-41 (1973). In addition, the disciplinary rules and ethical considerations related to Canon 3 of the Texas Code of Professional Responsibility for Lawyers prohibit a licensed attorney from assisting an unlicensed person from engaging in the unauthorized practice of law. See Title 14 App. art. 12, § 8 Canon 3, EC 3-1 through 3-9, DR-3-101 through 3-103 (1973). If, in the future, Muniz engages or threatens to engage in any specific unlawful practice of law, then the procedures under the State Bar Rules mentioned above can be easily instituted by the-proper authorities including additional injunctive relief. See Hexter Title & Abstract Co., Inc. v. Grievance Committee, 142 Tex. 506, 179 S.W.2d 946 (1944); Davies v. Unauthorized Practice Committee of the State Bar of Texas, 431 S.W.2d 590 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.).

That portion of the trial court’s judgment disbarring Muniz is hereby affirmed. That portion of the trial court’s judgment granting an injunction is also affirmed subject to the following modification of the injunction which is hereby substituted for the trial court’s injunction.

“It is further ORDERED, ADJUDGED and DECREED that the Defendant, Ramsey Ramiro Muniz, be and is hereby permanently enjoined from: 1) Practicing law; 2) holding himself out as an attorney at law; 3) performing any legal services for others; 4) accepting any fee directly or indirectly, for legal services; 5) holding himself out to others or by using his name, either orally or in printed or written form, in conjunction with the words ‘attorney at law,’ ‘counselor at law’ or ‘lawyer.’ ”

AFFIRMED AS MODIFIED.


author: HUGHES, Justice.

text:
    C. T. STEDMAN, Appellant, v. GEORGETOWN SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 18033.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 21, 1978.
    Rehearing Denied Jan. 18, 1979.
    McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk and Sam J. Day and Carter L. Ferguson, Fort Worth, for appellant.
    Clark, Thomas, Winters & Shapiro and Roy C. Snodgrass III, Austin, for appellee.
   OPINION

HUGHES, Justice.

C. T. Stedman, plaintiff, sued Georgetown Savings and Loan Association, defendant, for usury, asking for penalties under Tex.Rev.Civ.Stat.Ann. art. 5069-1.06 (1971). Trial to the court resulted in judgment for defendant. “Findings of Fact and Conclusions of Law” were requested and filed, to which plaintiff objected. Additional and amended “Findings of Fact and Conclusions of Law” were requested by plaintiff and denied by the trial court. Plaintiff perfected appeal.

We affirm.

No material facts are in issue, but the parties disagree emphatically as to their legal import. It appears that plaintiff asked defendant for a $65,000.00 loan to build a Dairy Queen. Defendant denied the application stating that it preferred to make home loans rather than high risk restaurant loans. However, defendant later reconsidered and agreed to lend plaintiff $60,000.00 payable over a period of 15 years at 10% interest per annum. The commitment was offered to plaintiff and he accepted.

The commitment, § 2, provided “-0-” loan fee to be paid in advance but stated in § 8 that defendant would “set aside and escrow the funds for the project and interest shall begin to accrue from that date.” No percentage of interest was stated in § 8, but defendant charged and plaintiff paid 10% on $60,000.00 from 6-30-75 to the end of January, 1976. On February 2,1976, the permanent loan was closed when plaintiff executed a note to defendant providing for 10% per annum interest.

Trial court’s findings of fact pertinent and in dispute are:

“(5) Upon the acceptance of the commitment by the Plaintiff, the Defendant set aside and reserved on its books the sum of $60,000.00.

“(7) Pursuant to the commitment, Plaintiff paid a fee at the rate of ten percent per annum from July 7, 1975 through the month of January, 1976, being a total of $2,883.31. The fee was paid by Plaintiff and accepted by Defendant in return for Defendant’s issuing the commitment to make a loan in the future.

“(8) The commitment entitled the Plaintiff, at his sole option, to obtain the loan described therein from Defendant and the consideration for the option was payable whether or not the permanent loan was actually made.

“(9) The commitment did not bind Plaintiff to borrow the money from Defendant and he was free to try to arrange permanent financing on terms more favorable to him from other lending institutions.

“(12) At no point in time has Plaintiff paid or Defendant received any sums in excess of ten percent per annum computed on $60,000.00.

“(16) There existed two separate transactions under the facts of this case, a commitment and a subsequent loan, and the Defendant charged a separate fee as compensation for each transaction.

“(17) All the payments made under the commitment were made prior to the formal execution and funding of the permanent loan.

“(18) The ten percent per annum fee charged for the commitment was a yardstick used to express the changing price at which the Plaintiff’s option to enter into a loan in the future could be exercised.”

Although plaintiff has assigned twenty points of error in his brief, we are really concerned with one primary question: Was the money paid before the note was executed interest?

We hold the pre-note payments to be consideration from plaintiff to defendant for an eight month unilateral option, giving plaintiff the option for a permanent loan from defendant, if plaintiff so elected.

If, at the end of the eight months, plaintiff obtained his loan from another source and elected to not. exercise his option with defendant, what would the 10% “interest” payments be? We hold them to be what trial court found them to be — consideration for an option. The option was the first of two separate transactions (a commitment and a loan). They were obviously separate, for the commitment could have been completed and terminated without implementation of the loan. The money paid up to that time which was denominated as “interest”, would have no principal on which to attach. Its purpose was served: it had bought an option for eight months, using the 10% interest provision in the future loan as a “yardstick”. “A fee which commits the lender to make a loan at some future date does not fall within this definition” (usury). “Instead, such a fee merely purchases an option which permits the borrower to enter into a loan in the future.” Gonzales County Sav. & Loan Assoc. v. Freeman, 534 S.W.2d 903, 906 (Tex.1976). The same case also pointed out that such a provision, as here entitled the borrower to a separate and additional consideration apart from lending money. The Texas Supreme Court also enunciated the rule that courts should look beyond the form of the transaction to its substance to determine if usury exists. “Labels put on particular charges are not controlling.” We hold the “interest” label in this case not controlling for reasons before stated.

A contract, doubtful in terms of construction or susceptible of more than one reasonable meaning, will be construed by a court in the manner which conforms with legality. Walker v. Temple Trust Co., 124 Tex. 575, 80 S.W.2d 935 (1935). This is done particularly in penal type statutes, such as those dealing with usury. Pinemont Bank v. DuCroz, 528 S.W.2d 877 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.).

Plaintiff has stressed the fact that defendant did not “escrow” $60,000.00 as provided in the commitment. No escrow was proven, as a matter of fact, and defendant’s agent testified, in effect, that none was made. However, we hold this to be immaterial in that defendant was bound by the commitment to be ready to have the $60,-000.00 available at whatever time plaintiff might demand it during the eight month option period.

In view of our foregoing holdings, we overrule points of error 1 through 20 and affirm the trial court.


author: SHANNON, Justice.

text:
    Ex parte Alfred D. PRUSKE, Sr.
    No. 12985.
    Court of Civil Appeals of Texas, Austin.
    Dec. 22, 1978.
    Van G. Hilley, Goodstein & Semaan, San Antonio, for relator.
    James R. Bass, San Antonio, for appellee.
   SHANNON, Justice.

This is an original habeas corpus proceeding filed in this Court by which relator Alfred D. Pruske, Sr. seeks his discharge from the custody of the sheriff of Comal County. Upon presentation of relator’s application, this Court directed issuance of the writ and relator’s release on bond.

Relator alleged that he was placed in the custody of the sheriff pursuant to an oral judgment of contempt issued by the district court of Comal County on December 15, 1978, on motion of relator’s former wife. The contempt proceeding arose from relator’s alleged failure to comply with a temporary order entered by the court in a divorce proceeding.

The parties agree that the oral judgment of contempt was issued on December 15, 1978, and on the same day, Pruske was committed to the custody of the sheriff of Comal County. This Court directed issuance of the writ and relator’s release on bond late in the afternoon of December 15. According to counsel on December 19,1978, at about 4:00 P.M., the district judge signed a written judgment of contempt.

Unless the contemptuous conduct is committed in the presence of the court, no person may be imprisoned for contempt unless pursuant to a written judgment of contempt. Ex Parte Martinez, 160 Tex. 328, 331 S.W.2d 209 (1960); Ex Parte Puckitt, 159 Tex. 438, 322 S.W.2d 597 (Tex.1959); Ex Parte Pepper, 544 S.W.2d 836 (Tex.Civ.App.1976, writ dism’d w. o. j.), 548 S.W.2d 884 (Tex.1977). After relator’s release by this Court on bail and during the course of the habeas corpus proceedings, the district court may not enter a written judgment of contempt thereby validating the void oral judgment. Ex Parte Hawkins, 545 S.W.2d 599 (Tex.Civ.App.1977); Ex Parte Spencer, 508 S.W.2d 698 (Tex.Civ.App.1974).

The relator is ordered discharged.


author: SPURLOCK, Justice.

text:
    H. Dale BAILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 18108.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 28, 1978.
    Rehearing Denied Jan. 18, 1979.

      H. Deloyd Bailey, Wichita Falls, for appellant.
    Davis Grant, State Bar of Texas, and Gary McNeil, Austin, for appellee.
   OPINION

SPURLOCK, Justice.

Appeal from the denial of an injunction to enjoin grievance committee from prosecuting suit to disbar an attorney after he was convicted of theft. Question is whether automatic suspension after felony probation pursuant to Tex.Rev.Civ.Stat.Ann. art. 320a-l § 6 (1973) (State Bar Act) is exclusive so as to prohibit a subsequent suit to disbar. Trial court held that although the section is automatic and mandatory, it is not exclusive.

We affirm.

FACTS

H. Dale Bailey is an attorney licensed to practice law in Texas. He was convicted in Wichita County of felony theft over $10,-000.00. He was assessed a four year sentence probated for four years. The grievance committee states in its brief that Bailey was suspended from the practice of law as one of the terms of his probation. After successfully completing about one-third of his probation he was dismissed therefrom on February 3, 1978.

On May 24,1978 the grievance committee for State Bar Dist. No. 14A filed suit in Wichita County to disbar Bailey, asserting the theft as grounds. Bailey answered by a general denial and filed in the same cause an original petition for writ of injunction to enjoin the committee from prosecuting their suit to disbar. The trial court rendered a show cause order on the petition for injunction and held a hearing on the merits. The court denied Bailey’s petition.

ON MOTION TO DISMISS THE APPEAL

The committee moves to dismiss Bailey’s appeal claiming we have no jurisdiction. It claims his petition is nothing more than a plea of res judicata which should have been pled as an affirmative defense under Tex.R. Civ.P. 94. It would have us construe the trial court’s order denying his petition as a denial of a plea of res judicata. The committee correctly states that a denial of a plea of res judicata is a non-appealable, interlocutory order. They, therefore, conclude we lack jurisdiction to hear the appeal. We disagree.

It is well settled that injunctions preventing litigation are never favored and are to be used very sparingly. We want the door to remain closed which bars would-be defendants from frivolously seeking to enjoin plaintiffs from prosecuting legitimate causes of action against them and delaying disposition of the cases by frivolous appeals. The enjoining of the prosecution of a suit has very limited application. It has been authorized to prevent a multiplicity of suits; to avoid vexatious litigation; or to prohibit the use of judicial process for the purpose of harassment. University of Texas v. Morris, 162 Tex. 60, 344 S.W.2d 426 (1961).

After carefully reviewing Bailey’s petition, we conclude it would be unjust to construe it as merely a plea of res judicata. Certainly, the ideas of res judicata and double jeopardy are at the heart of Bailey’s petition. Double jeopardy is not actually alleged because it obviously does not apply, but the tenor of Bailey’s complaint advances that doctrine. His petition alleges that injunctive relief is warranted to prevent a multiplicity of suits, and because the committee’s action is vexatious, frivolous, without authority, and calculated to embarrass and harass him. If proven these allegations would seem to support the issuance of an injunction.

Further, the record reflects the parties and court all considered Bailey’s pleadings as a petition for a writ of injunction. The record is void of any indication that anyone treated Bailey’s petition as a plea of res judicata.

Basic to our overruling of the committee’s motion to dismiss are the facts that Bailey’s petition raises a legitimate question of law and if disbarred he would be suspended during any appeal. Bailey’s petition raises the issue of whether the automatic and mandatory suspension of any attorney convicted of a felony and given probation is exclusive so as to prohibit a subsequent suit to disbar. This is obviously an important question over which reasonable minds differ. Also we note that should Bailey be disbarred, he would be suspended from the practice of law during any appeal. Tex.Rev.Civ.Stat.Ann. Title 14 App. art. 12 § 30 (1973) (State Bar Rules) provides he cannot practice law, supersede or otherwise suspend the judgment during appeal. It is these two facts which gives legitimacy to his petition, and but for them we would have granted the committee’s motion.

The committee’s motion to dismiss the appeal for want of jurisdiction is overruled.

ON THE MERITS OF THE APPEAL

Bailey bases his appeal on the single point of error that the trial court improperly denied his petition for a writ of injunction because it erroneously concluded that suspension pursuant to Tex.Rev.Civ.Stat.Ann. art. 320a-l § 6 (1973) (State Bar Act) is not exclusive.

Tex.Rev.Civ.Stat.Ann. art. 320a-l § 6 (1973) (State Bar Act) provides:

No disbarment proceeding shall be instituted against any attorney except in the district court located in the county of said attorney’s residence, nor shall any attorney be suspended until such attorney has been convicted of the charge pending against him, in a court of competent jurisdiction in the county of such attorney’s residence. Provided, however, upon proof of conviction of an attorney in any trial court of any felony involving moral turpitude or of any misdemeanor involving the theft, embezzlement, or fraudulent appropriation of money or other property, the district court of the county of the residence of the convicted attorney shall enter an order suspending said attorney from the practice of law during the pendency of any appeal from said conviction. An attorney who has been given probation after such conviction shall be suspended from the practice of law for the period of his probation. Upon proof of final conviction of any felony involving moral turpitude or of any misdemeanor involving theft, embezzlement, or fraudulent appropriation of money or other property, where probation has not been given or has been revoked, the district court of the county of the residence of the convicted attorney shall enter a judgment disbarring him.

Bailey contends this section is automatic, mandatory, and exclusive. The committee agrees that it is automatic and mandatory to the extent that when a proper party brings by proper pleading a summary proceeding, proving conviction and probation, the district court must suspend. The committee claims, however, that Bailey’s suspension was a term of his probation in his criminal proceeding, and that there is no evidence that he was ever suspended in the civil summary proceeding contemplated by § 6.

It is our opinion that § 6 provides for automatic suspension by operation of law. That is when an attorney has been convicted of a crime described in the section and is given probation he is automatically suspended by operation of law, whether a summary proceeding is had or whether the district court of the county of the attorney’s residence renders an order or not. We believe the legislature desires to make sure the public is protected against an attorney who has been convicted of a crime described in the statute. It intended that the attorney be suspended upon being granted probation automatically. The legislature wanted to protect the public without regard to whether the grievance committee of a particular district is diligent in bringing summary proceedings against convicted attorneys receiving probation. Therefore, we reject the committee’s position and hold that Bailey was suspended pursuant to § 6 by operation of law.

In support of his claim that suspension pursuant to § 6 is exclusive, Bailey cites McGregor v. Clawson, 506 S.W.2d 922, 928 (Tex.Civ.App.—Waco 1974, no writ). He claims the following language of the court’s opinion has decided the exclusivity question.

Our Supreme Court has laid down the rule that where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects, or the action is not maintainable. (Citing cases.)
The State Bar Act is purely a creature of statute, prescribing the machinery and procedure by which the State Bar has been empowered to bring and maintain the disbarment suit in question. But for the statute, the State Bar and District Grievance Committee would have no existence. Where a statute creates a right and provides a remedy for its enforcement, the remedy is exclusive, and where it confers jurisdiction upon a particular court, that jurisdiction is exclusive.

Bailey would read McGregor, supra, as holding that because § 6 provides for automatic suspension, the suspension is exclusive and prohibits any further discipline. We do not so construe McGregor, nor do we believe § 6 so provides. McGregor was a venue ease. A suit to disbar was brought against the district attorney of a small county. The case was tried and a mistrial declared because the jury failed to reach a verdict. The State Bar moved for a change of venue on the grounds that it could not get a fair trial. After a hearing the trial court transferred the case to another county. On these facts the court decided the venue provisions in § 6 were exclusive and that the trial court erred in ordering a change of venue. After a careful reading of the opinion we are unable to find therein any reference to disbarment after mandatory suspension pursuant to the section. Therefore, it is our opinion any casual remarks in McGregor that may be applicable to our facts are at most dicta.

A careful analysis of § 6 fails to reveal any prohibition against a disbarment proceeding being instituted after mandatory suspension pursuant to the act has expired. Bailey points out that disbarment is the State Bar’s maximum punishment. He further notes that once disbarred, an attorney cannot be readmitted for five years. He complains that if suspension pursuant to § 6 is not exclusive, and an attorney is disbarred after his § 6 suspension expires, it will be a minimum of five years in addition to the period of probation in which the attorney could not practice. Therefore, it would be possible for an attorney who did not receive probation to serve his time and be readmitted before an attorney who received probation and then was disbarred after his suspension expired could be readmitted.

Bailey’s complaint lacks merit because there is insufficient correlation between the considerations in placing a convict on parole and determining whether an individual is fit to have the privilege of practicing law. The organized bar has the duty and the public has the right to expect that individuals admitted to practice law are morally fit. Just because a judge or jury determines that incarceration would not be in the best interest of rehabilitating a convict does not mean that the individual is therefore fit to practice law after probation expires.

Further, Bailey’s position would result in a judge or jury determining how long an individual would be suspended because § 6 provides for suspension of the period of probation. We cannot believe the legislature intended such a result. It is our opinion that in providing for automatic suspension the legislature set a minimum standard of discipline to protect the public. We cannot believe it was intended to preclude further discipline if proven to be appropriate. Therefore, we hold that automatic suspension pursuant to § 6 is not exclusive and does not prevent disbarment proceedings.

The appellant’s point of error has been duly considered and is overruled.

Affirmed.