Court of Appeals of Texas, Ninth District, Beaumont
KRISTIN D. WILKINSON, Appellant
COMMISSION FOR LAWYER DISCIPLINE, Appellee
Submitted on March 6, 2019
Appeal from the 284th District Court Montgomery County, Texas
Trial Cause No. 16-09-10238-CV
McKeithen, C.J., Kreger and Johnson, JJ.
CHARLES KREGER JUSTICE
D. Wilkinson appeals a final judgment of disbarment following
a jury trial. See Tex. Rules Disciplinary P. R. 3.15
(Feb. 26, 1991, Oct. 9, 1991), renumbered eff. June
1, 2018. In a pre-trial order granting a motion for
partial summary judgment, the trial court ruled that as a
matter of law, Wilkinson violated a disciplinary judgment
when she drafted and executed a trust document and powers of
attorney while actively suspended from the practice of law.
See Tex. Disciplinary Rules Prof'l Conduct R.
8.04(a)(7) (Oct. 17, 1989), amended eff. Oct. 1,
1994, amended eff. May 1, 2018. The jury found
that Wilkinson engaged in conduct involving dishonesty,
fraud, deceit, or misrepresentation, and that Wilkinson
committed a criminal act that reflects adversely on her
honesty, trustworthiness or fitness as a lawyer in other
respects. See id. R. 8.04(a)(2), (3) (Oct. 17,
1989), amended eff. Oct. 1, 1994, amended eff. May 1, 2018.
In the final judgment, the trial court disbarred Wilkinson as
a sanction for her professional misconduct. The three issues
presented by Wilkinson in her brief contend: (1) the trial
court erred by denying Wilkinson's plea to the
jurisdiction; (2) there were defects in the charge and
legally and factually insufficient evidence to support the
jury's verdict; and (3) the trial court erred by granting
the Commission's partial summary judgment, in denying
Wilkinson's motion for reconsideration, and in denying
her motion for summary judgment and her requests for jury
Plea to the Jurisdiction
filed a post-judgment plea to the jurisdiction in which she
argued that neither the Commission nor the lawyer who filed a
grievance had standing to make allegations against Wilkinson
on behalf of the beneficiary of the trust. Wilkinson further
argued that the trial court interfered with the jurisdiction
of the 190th District Court of Harris County where the
beneficiary of the trust filed an action against Wilkinson.
Additionally, Wilkinson challenged the Commission's
jurisdiction over the acts of a trustee in the administration
of a trust when that trustee was not admitted to practice law
in Texas. The trial court signed an order denying the plea to
the jurisdiction on November 13, 2017.
review a challenge to the trial court's subject matter
jurisdiction de novo. Tex. Dep't of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004). Where a plea to the jurisdiction challenges the
pleadings, we determine if the pleader has alleged facts that
affirmatively demonstrate the court's jurisdiction to
hear the cause, construing the pleadings liberally in favor
of the plaintiff and considering the plaintiff's intent.
Id. If a plea to the jurisdiction challenges the
existence of jurisdictional facts, we consider relevant
evidence submitted by the parties when necessary to resolve
the jurisdictional issues raised. Id. at 227. If the
relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules
on the plea to the jurisdiction as a matter of law.
Id. at 228. The fact finder will resolve any fact
question regarding the jurisdictional issue. Id. at
court's subject-matter jurisdiction traditionally
consists of the power, conferred by constitutional or
statutory provision, to decide the kind of claim alleged in
the plaintiff's petition and to grant relief. Sierra
Club v. Tex. Nat. Res. Conservation Comm'n, 26
S.W.3d 684, 687 (Tex. App.-Austin 2000), aff'd on
other grounds, 70 S.W.3d 809 (Tex. 2002). The Texas
Supreme Court regulates the practice of law in Texas,
exercises administrative control over the state bar, and
adopts rules for the discipline of state bar members. In
re State Bar of Texas, 113 S.W.3d 730, 732 (Tex. 2003);
see also Tex. Gov't Code Ann. § 81.011
(West 2013). Each attorney admitted to practice in Texas is
subject to the disciplinary jurisdiction of the Supreme Court
and the Commission. Tex. Gov't Code Ann. § 81.071
(West 2013). The Commission files the disciplinary petition
in a district court of the county of the attorney's
principal place of practice. See Tex. Rules
Disciplinary P. R. 3.03. (Feb. 26, 1991, Oct. 9, 1991),
amended eff. Oct. 1, 1994, amended eff.
Jan. 1, 2004, amended eff. Oct. 1, 2012. The county
in which the disciplinary action is filed is a matter of
venue, not jurisdiction, and can be waived. Acevedo v.
Comm'n for Lawyer Discipline, 131 S.W.3d 99, 103-04
(Tex. App.-San Antonio 2004, pet. denied). Furthermore, the
Commission acts not as or on behalf of a private litigant to
redress a private wrong, but as an administrative agency
under the administrative control of the Supreme Court to hold
an attorney accountable for professional misconduct.
Id. at 104.
September 1, 2016, the Supreme Court appointed a judge to
preside over the disciplinary action against Wilkinson to be
filed in a district court of Montgomery County, Texas. The
Commission filed the petition in a Montgomery County district
court on September 2, 2016. See Tex. Rules
Disciplinary P. R. 3.01. (Feb. 26, 1991, Oct. 9, 1991),
amended eff. Jan. 1, 2004, amended eff.
Oct. 1, 2012. In its petition, the Commission alleged that
Wilkinson was a licensed attorney and a member of the State
Bar of Texas. The Commission alleged: (1) in 2011, Wilkinson
received a judgment of partially probated suspension; (2) in
2013, the Texas Board of Disciplinary Appeals issued a
judgment revoking her probation and ordered that Wilkinson be
actively suspended from the practice of law from July 26,
2013, to July 25, 2015; (3) Wilkinson continued to practice
law while on active suspension when in August 2014, she
drafted and had executed an Irrevocable Living Trust
Agreement and General Power of Attorney, by which the
beneficiary transferred all of her assets to a trust with
Wilkinson designated as the sole trustee; (4) on April 24,
2015, Wilkinson was removed as trustee in a proceeding filed
in Probate Court Number One of Harris County; and (5)
approximately $650, 000 of liquid assets diminished to about
$200, 000 while Wilkinson was trustee. The Commission's
petition invoked the trial court's subject matter
jurisdiction to adjudicate the disciplinary action against
Wilkinson as an attorney licensed in Texas in the exercise of
the Supreme Court's administrative control over Texas
filed a general denial without seeking a transfer to another
county. Wilkinson signed her original answer as "The
Wilkinson Law Firm, Kristin Wilkinson, Attorney and Counselor
at Law, by: /s/ Kristin Wilkinson" under the same State
Bar Number as alleged by the Commission in its petition.
Although she argued in the trial court and in her appeal that
the actions for which she was disciplined were not taken in
her capacity as an attorney, when the Commission filed the
petition at the direction of the Supreme Court, Wilkinson was
an attorney licensed in Texas subject to the disciplinary
jurisdiction of the Supreme Court and the Commission.
See Tex. Gov't Code Ann. § 81.071.
Likewise, as an attorney, Wilkinson was subject to the Texas
Rules of Disciplinary Procedure and the Texas Disciplinary
Rules of Professional Conduct. Id. § 81.072(d)
(West Supp. 2018). Furthermore, the Commission filed the
disciplinary petition as an administrative agency of the
Supreme Court, not on behalf of the beneficiary of the trust
or the person who initiated a grievance. See
Acevedo, 131 S.W.3d at 104. As an exercise of the
Supreme Court's administrative control to hold an
attorney accountable for professional misconduct, the
disciplinary action did not interfere with the district
court's jurisdiction over the litigation relating to the
trust. See id.; see generally Favaloro v.
Comm'n for Lawyer Discipline, 13 S.W.3d 831, 836
(Tex. App.-Dallas 2000, no pet.) (the trial court for the
disciplinary proceeding did not interfere with the
jurisdiction of the court in which the lawyer filed a suit
against the state bar and the grievance committee). We
conclude the trial court had the power to both try and enter
judgment in the disciplinary action. See Tex. Rules
Disciplinary P. R. 3.03, 3.09 (Feb. 26, 1991, Oct. 9, 1991).
We overrule issue one.
Error and Sufficiency of the Evidence
second issue complains of defects in the jury charge and
claims the evidence is legally and factually insufficient to
sustain the jury's verdict. The trial court submitted two
questions to the jury. Question One asked, "Did Kristin
Wilkinson engage in conduct involving dishonesty, fraud,
deceit or misrepresentation?" The trial court instructed
the jury that, "[t]he term 'fraud' denotes
conduct having a purpose to deceive and not merely negligent
misrepresentation or failure to apprise another of relevant
information." The trial court instructed the jury that
[t]he term "misrepresentation" may be defined as
one or both of the following: 1) The act or an instance of
making a false or misleading assertion about something,
usually with the intent to deceive. The word denotes not just
written or spoken words but also any other conduct that
amounts to a false assertion. 2) The assertion so made; an
incorrect, unfair, or false statement; an assertion that does
not accord with the facts.
Two asked, "Did Kristin Wilkinson commit a criminal act
that reflects adversely on her honesty, trustworthiness or
fitness as a lawyer in other respects?" In connection
with Question Two, the trial court instructed the jury that
[i]t is a "criminal act" to intentionally,
knowingly, or recklessly misapply property held as a
fiduciary in a manner that involves substantial risk of loss
to the owner of the property or to a person for whose benefit
the property is held.
A "fiduciary" includes a trustee, an attorney in
fact or agent appointed under a durable power of attorney, or
any other person acting in a fiduciary capacity.
A person acts in a "fiduciary capacity" when the
business she transacts, or the money or property which she
handles, is not hers or for her own benefit, but for the
benefit of another person with whom she has a relationship
implying and necessitating great confidence and trust and a
high degree of good faith.
A person acts "intentionally" with respect to the
nature or result of her conduct when it is her conscious
objective or desire to engage in the conduct or cause the
A person acts "knowingly" with respect to the
nature of or the circumstances surrounding her conduct when
she is aware of the nature of her conduct or that the
circumstances exist or that her conduct is reasonably certain
to cause the result.
A person acts "recklessly" with respect to
circumstances surrounding her conduct or the result of her
conduct when she is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances
exist or the result will occur. The risk must be of such a
nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from the
Wilkinson's request, the trial court instructed the jury
A fact may be established by direct evidence or by
circumstantial evidence or both. A fact is established by
direct evidence when proved by documentary evidence or by
witnesses who saw the act done or heard the words spoken. A
fact is established by circumstantial evidence when it may be
fairly and reasonably inferred from other facts proved.
A trustee must administer the trust solely in the interest of
The trustee must administer the trust as a prudent person
would, in light of the purposes, terms, and other
circumstances of the trust.
A trustee must take all reasonable steps to secure possession
of, and maintain control over, the trust property, and use
the level of care and skill a person of ordinary prudence
would use to preserve trust property. This duty applies not
only to tangible property, but also to other rights of the
trust estate. For example, a trustee must take reasonable
actions to collect claims due to the trust estate.
Although a trustee may deposit trust funds in a bank or other
financial institution, the trustee must use reasonable care
in selecting the institution and must designate all such
deposits as trust deposits. The trustee may not subject the
property to unreasonable restrictions on withdrawal or leave
it in non-interest bearing accounts for unduly long periods
of time. Pending investment, distribution, or payment of
debts, a trustee is authorized to deposit trust funds in a
bank that is subject to supervision by state or federal
A trustee shall invest and manage the trust assets solely in
the interest of the beneficiaries.
A beneficiary by written demand may request the trustee to
deliver to each beneficiary of the trust a written statement
of accounts covering all transactions since the last
accounting or since the creation of the trust, whichever is
later. If the trustee fails or refuses to deliver the
statement on or before the 90th day after the date the
trustee receives the demand or after a longer period ordered
by a court, any beneficiary of the trust may file suit to
compel the trustee to deliver the statement to all
beneficiaries of the trust. The court may require the trustee
to deliver a written statement of account to all
beneficiaries on finding that the nature of the
beneficiary's interest in the trust or the effect of the
administration of the trust on the beneficiary's interest
is sufficient to require an accounting by the trustee.
However, the trustee is not obligated or required to account
to the beneficiaries of a trust more frequently than once
every 12 months unless a more frequent accounting is required
by the court.
Unless the terms of the trust provide otherwise, the trustee
is entitled to reasonable compensation from the trust ...