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Tirrez v. Commission for Lawyer Discipline

Court of Appeals of Texas, Third District, Austin

January 12, 2018

Jesus E. Tirrez, Appellant
v.
Commission for Lawyer Discipline and Linda A. Acevedo, in her Official Capacity as the Chief Disciplinary Counsel of the State Bar of Texas, Appellees

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT NO. D-1-GN-14-004987, HONORABLE EARL B. STOVER III, JUDGE PRESIDING.

          Before Chief Justice Rose, Justices Goodwin and Bourland

          MEMORANDUM OPINION

          Cindy Olson Bourland, Justice

         The State Bar of Texas Commission for Lawyer Discipline brought a disciplinary action against attorney Jesus E. Tirrez alleging that he committed professional misconduct in connection with improper solicitation of employment through an employee. Tirrez filed a counterclaim against the Commission and a third-party action against the Commission's Chief Disciplinary Counsel, Linda Acevedo, seeking a declaratory judgment stating that disciplinary proceedings are quasi-criminal and must be proved by clear and convincing evidence. The trial court granted a motion to dismiss Tirrez's counterclaims and the third-party action. Tirrez filed motions for sanctions against the Commission, its counsel, and Acevedo, including a "Notice of Fraud on the Court" and a motion to dismiss for "Selective or Vindictive Prosecution or for Prosecutorial Misconduct." The trial court denied these two motions. Following a bench trial, the court entered an order finding that Tirrez had violated Rules 5.03(b)(1), 7.03(a), and 8.04(a)(1). See Tex. Disciplinary Rules Prof'l Conduct R. 5.03(b)(1), 7.03(a), 8.04(a)(1), reprinted in Tex. Gov't Code tit. 2, subtit. G, app. A. It imposed sanctions including a 24-month partially probated suspension and $18, 743.17 in attorney's fees and direct expenses. Tirrez appeals, arguing that the trial court applied the wrong burden of proof, lacked sufficient evidence to support the judgment, abused its discretion by denying his motions for sanctions, and erred in its manner of imposing attorney's fees. We will affirm the judgment of the district court.

         BACKGROUND

         The Commission filed a disciplinary petition against Tirrez after it received a grievance from Maria Audelo. The petition alleged that Audelo was injured in a car accident on September 29, 2013. According to Audelo, on October 1, 2013, she was improperly solicited at her home by a representative for Tirrez, with Tirrez's encouragement or permission. The solicitation resulted in Tirrez representing Audelo and her son in a civil matter. The Commission alleged in its petition that these actions by Tirrez violated Rules 5.03(b)(1), 7.03(a), and 8.04(a)(1). See id.

         Tirrez filed a counterclaim against the Commission and a third-party action against Linda Acevedo, the Chief Disciplinary Counsel of the State Bar. Based on a 1968 United States Supreme Court decision, Tirrez sought a declaratory judgment stating that disbarment proceedings are quasi-criminal in nature and that the burden of proof is by clear and convincing evidence rather than a preponderance of the evidence. See In re Ruffalo, 390 U.S. 544 (1968). He also claimed that in applying the wrong burden of proof, the Commission denied him due process and equal protection, and he brought a section 1983 action seeking a declaratory judgment that to the extent that attorney-discipline proceedings are considered civil, they are unconstitutional. See 42 U.S.C. § 1983. On both claims, he asked for a temporary injunction preventing the Commission from pursuing the action under a preponderance-of-the-evidence standard. The Commission and Acevedo moved to dismiss Tirrez's counterclaims under Texas Rule of Civil Procedure 91a. See Tex. R. Civ. P. 91a. The Commission also sought sanctions under Texas Civil Practice and Remedies Code Section 10.001 against Tirrez's counsel for attorney's fees in the amount of $1, 000 as supported by an affidavit from counsel for the Commission, Rebecca Stevens. See Tex. Civ. Prac. & Rem. Code §§ 10.001, .004(c)(3) (allowing court to award party reasonable expenses incurred because of filing of improper pleading).

         In his response to the Commission's motion, Tirrez included a cross-motion for sanctions in the amount of his reasonable attorney's fees and costs, alleging that the Commission's motion to dismiss was frivolous because it ignored the Supremacy Clause and controlling United States Supreme Court precedent. Tirrez filed two supplemental responses as well, advancing additional argument regarding the proper burden of proof. With his final response, Tirrez attached an "Unsworn Declaration Under Penalties of Perjury" from his attorney, which purported to support a claim for attorney's fees in the amount of $12, 750. The trial court granted the Commission's motion, dismissing Tirrez's counterclaim and third-party action, and declined to award attorney's fees to either party.

         Tirrez subsequently filed a "Notice of Fraud on Court and Request for Hearing, " alleging that Stevens included material misstatements of fact in her affidavit supporting attorney's fees and that Audelo committed perjury in her deposition. Tirrez also filed a motion to dismiss for "Selective or Vindictive Prosecution or For Prosecutorial Misconduct, " repeating his allegation that Stevens made and filed, under Acevedo's supervision, a false affidavit in violation of the Texas Disciplinary Rules of Professional Conduct. Tirrez claimed that by prosecuting Tirrez but not Stevens or Acevedo for Rule violations, the Commission engaged in selective prosecution in violation of the U.S. Constitution.

         Following a three-day bench trial, the trial court denied Tirrez's notice of fraud on the court and his motion to dismiss for selective prosecution. The court entered a judgment finding that Tirrez had violated Rules 5.03(b)(1), 7.03(a), and 8.04(a)(1). See Tex. Disciplinary Rules Prof'l Conduct R. 5.03(b)(1), 7.03(a), 8.04(a)(1). It suspended Tirrez from the practice of law for two years, with 21 months of the suspension probated. As part of the sanctions, the court ordered Tirrez to pay attorney's fees in the amount of $18, 743.17. Tirrez appeals from the dismissal of his counterclaims under Rule 91a, the denial of his notice of fraud on the court and of his motion to dismiss for selective or vindictive prosecution, and from the court's final judgment.

         ANALYSIS

         Tirrez appeals the trial court's orders in seven issues. The first two relate to his argument that attorney disciplinary proceedings are quasi-criminal. On this basis, he claims in his first issue that the trial court erred in dismissing his counterclaim and in his second issue that the court applied the wrong burden of proof to find that Tirrez had violated the Disciplinary Rules. In his third issue, Tirrez contends that insufficient evidence supports the court's judgment of suspension. Fourth, Tirrez argues that the trial court abused its discretion by denying sanctions against the Commission and Acevedo. In his fifth and sixth issues, Tirrez claims that the trial court abused its discretion by denying his motion regarding fraud on the court and by denying his motion for dismissal for selective prosecution, respectively. Finally, Tirrez contends that the trial court erred by characterizing the award of attorney's fees as a sanction for violation of Disciplinary Rules and to the extent that such characterization is allowed by the Disciplinary Rules, he argues that the action is unconstitutional.

         Burden of Proof

         In Tirrez's first and second issues, he argues that the trial court erred in dismissing his counterclaim because, he contends, the United States Supreme Court has determined that attorney disciplinary proceedings are quasi-criminal in nature and therefore must be proved by clear and convincing evidence. He points to In re Ruffalo, which he characterizes as holding that Fourteenth Amendment due process requires that disbarment proceedings be classified as quasi-criminal. Specifically, he relies on the Court's statements that, "[d]isbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer, " and that disbarment proceedings "are adversary proceedings of a quasi-criminal nature." In re Ruffalo, 390 U.S. at 550-51. He acknowledges that the Court did not address the burden of ...


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