Opinion issued July 3, 2008
In The
Court of Appeals
For The
First District of Texas
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NO. 01-07-01104-CV
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DANIEL GOLDBERG, Appellant
V.
THE COMMISSION FOR LAWYER DISCIPLINE AND THE STATE BAR OF TEXAS, Appellees
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 2007-61478
CONCURRING OPINION
There is much less to this case than meets the eye.
Appellant, Daniel Goldberg, challenges the trial court’s dismissal of his suit upon the plea to the jurisdiction of appellees, the Commission for Lawyer Discipline (the “Commission”) and the State Bar of Texas (the “State Bar”). Goldberg seeks a declaration that he “is entitled to the immediate restoration” of his Texas law license and that “the judgment of [his] disbarment be declared void.” He asserts that he is seeking to “restore” his law license, in contrast to having it “reinstated.” See Tex. R. Disciplinary P. 11.01, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-1 (Vernon 2005). Thus, he argues, the trial court had subject matter jurisdiction to declare his law license restored and his disbarment void. See id.
In support of his position, Goldberg relies on Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002). In Cuellar, the Texas Court of Criminal Appeals noted that, after a criminal defendant has successfully completed community supervision, the trial court may, in its discretion, exercise “judicial clemency” and permit the defendant to withdraw his plea and then dismiss the indictment against the defendant. Id. at 819–20 (citing Tex. Code. Crim Proc. Ann. art 42.12, § 20(a) (Vernon Supp. 2007)). Because the conviction was set aside and Cuellar was “not a convicted felon,” the court held that he could not be subsequently prosecuted for the offense of being a felon in possession of a firearm. Id. at 820 (citing Tex. Penal Code. Ann. § 46.04(a) (Vernon Supp. 2007)).
Here, however, Goldberg, prior to the criminal district court’s dismissal of the felony theft indictment against him, had accepted and completed community supervision for having committed the intentional offense of aggregate theft. Texas Rule of Disciplinary Procedure 8.05 provides,
When an attorney has been convicted of an [i]ntentional [offense], and that conviction has become final, or the attorney has accepted [community supervision] with or without an adjudication of guilt for an [i]ntentional [offense], the attorney shall be disbarred . . . .
Tex. R. Disciplinary P. 8.05 (emphasis added). The only way for a person who has actually been disbarred to get his law license back is to petition the district court of the county of his residence for reinstatement. Tex. R. Disciplinary P. 11.01. Moreover, no person who has been disbarred “by reason of conviction of or having been placed on [community supervision] without an adjudication of guilt” for an intentional offense is eligible to apply for reinstatement until five years following the date of completion of sentence, including any period of community supervision. Id. (emphasis added).
It matters not that the felony theft indictment was subsequently dismissed after Goldberg successfully completed community supervision. The simple fact remains that Goldberg had previously accepted community supervision for committing the intentional offense, and he suffered the compulsory discipline of disbarment. Thus, he must wait five years after the date that he successfully completed community supervision to petition the district court for reinstatement. See id. Accordingly, I agree that the trial court did not have subject matter jurisdiction to declare that Goldberg’s law license was restored and did not err in granting the plea to the jurisdiction of the Commission and the State Bar.
Terry Jennings
Justice
Panel consists of Justices Taft, Jennings, and Bland.
Justice Jennings, concurring.