Opinion issued June 13, 2013
In The
Court of Appeals
For The
First District of Texas
NO. 01-13-00428-CV
____________
D. PATRICK SMITHERMAN, Appellant
V.
COMMISSION FOR LAWYER DISCIPLINE, Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2010-10256
MEMORANDUM OPINION
This is an attempted appeal from an interlocutory order finding that appellant,
D. Patrick Smitherman, committed professional misconduct as defined by the Texas
Disciplinary Rules of Professional Conduct. Generally, appeals may be taken only
from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001). Interlocutory orders may be appealed only if authorized by statute. Bally
Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001).
Here, the record reveals that no final judgment has been entered in this
pending case. The order signed by the trial court explicitly states that it is not final,
and indicates that a final judgment will be entered after the trial court holds a
separate sanctions hearing, as permitted by the Texas Rules of Disciplinary
Procedure. See TEX. R. DISCIPLINARY P. 3.09 (after a finding of professional
misconduct, the trial court determines the appropriate sanction or sanctions),
reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. (West 2013), 3.10 (trial
court may, in its discretion, conduct a separate hearing and receive evidence as to
the appropriate sanctions to be imposed), reprinted in TEX. GOV’T CODE ANN., tit.
2, subtit. G app. (West 2013).
On May 24, 2013, the Court notified the parties of its intent to dismiss the
appeal for want of jurisdiction unless appellant filed a response demonstrating this
court’s jurisdiction on or before June 3, 2013. See TEX. R. APP. P. 42.3(a).
Appellant responded, arguing among other things that because Texas Rule of
Disciplinary Procedure 3.10 authorizes the trial court to hold a separate hearing
regarding sanctions, sanctions are not required to be included in a judgment from a
disciplinary proceeding in order for that judgment to be final. See TEX. R.
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DISCIPLINARY P. 3.10. Appellant states that “a sanction is merely a way to enforce
a final judgment in the context of attorney disciplinary matters” and that a sanction
is “akin to an abstract of judgment or some type of post-judgment writ.” He asserts
that a sanctions hearing in the attorney disciplinary context is “a post-judgment
proceeding, separate and apart from the act of making a judgment on underlying
claims final.” He further argues that the interlocutory order “disposed of the issues
for which the trial proceeding was brought,” and therefore should be appealable.
To the contrary, sanctions are a necessary part of the final judgment in
disciplinary proceedings where there has been a finding of professional misconduct.
See TEX. R. DISCIPLINARY P. 3.09 (after a finding of professional misconduct, the
trial court shall determine the appropriate sanction or sanctions). In order for a
judgment from a disciplinary proceeding to be final, the order must actually dispose
of every pending claim and party or unequivocally state that it finally disposes of all
claims and all parties. See Lehman, 39 S.W.3d at 205; see also TEX. R.
DISCIPLINARY P. 3.16, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app.
(West 2013) (“A final judgment of the district court . . . may be appealed as in civil
cases generally.”). Here, in its petition, the Commission for Lawyer Discipline
sought a finding that appellant committed professional misconduct and sought
various forms of relief, including sanctions. The interlocutory order only makes
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findings regarding professional misconduct, and explicitly states that a separate
hearing will be held to determine sanctions, as permitted by the Texas Rules of
Disciplinary Procedure. See TEX. R. DISCIPLINARY P. 3.10. Accordingly, until the
trial court has made a determination regarding sanctions, there is no final judgment
in the underlying trial court cause. See TEX. R. DISCIPLINARY P. 3.09, 3.10. We
have found no authority supporting appellant’s claims that sanctions are merely a
way to enforce a final judgment in a disciplinary proceeding or that a sanctions
hearing in a disciplinary proceeding is a post-judgment proceeding. Likewise,
appellant’s claim that the interlocutory order disposes of the “issues for which the
trial proceeding was brought” ignores the fact that sanctions are part of the relief
sought by the Commission in its petition, and that the trial court explicitly noted in
the interlocutory order that a separate hearing on sanctions would be held prior to
the execution of a final judgment, as permitted.
Appellant’s response does not demonstrate grounds for continuing this
appeal. Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.
APP. P. 42.3(a), 43.2(f). We dismiss any other pending motions as moot.
PER CURIAM
Panel consists of Justices Jennings, Brown, and Huddle.
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