United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-51714
In Re: DAVID MARK CONRAD
Petitioner
Petition for Writ of Mandamus to the United States District Court
for the Western District of Texas, El Paso
No. 3:05-CV-336
Before KING, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
The district court denied petitioner David Mark Conrad’s
motion to appear pro hac vice and his motion for reconsideration
without giving reasons. Conrad now seeks a writ of mandamus
compelling the district court to admit him pro hac vice or
alternatively to conduct a hearing on his motion. We think it
would be helpful, in ruling on Conrad’s petition, to have the
district court’s reasons for the denial of Conrad’s motion.
Accordingly, we invite the district court to address the petition
and to state its reasons for denying Conrad’s motion. See FED.
R. APP. P. 21(b)(4) (“The court of appeals may invite or order
the trial-court judge to address the petition [for writ of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
mandamus] . . . .”). We suggest (and it is only a suggestion)
that the court address the following points because we believe it
would be helpful in our consideration of Conrad’s petition.
First, under In re Evans, 524 F.2d 1004 (5th Cir. 1975),
when an attorney “who is a member in good standing of a state
bar” moves before trial to appear pro hac vice, the district
court must grant the motion unless it finds that the attorney has
engaged in conduct that would justify disbarment. Id. at 1007.
Such a finding cannot be made absent notice and a hearing on the
record at which the attorney has the opportunity to defend his
professional reputation. Id. at 1008.
According to Conrad’s petition, the Supreme Court of Texas
has admitted him to practice under a two-year probationary
license, due to his chemical (alcohol) dependency. Probationary
licenses are permitted by § 82.038 of the Texas Government Code,
which was enacted in 1991 in order to “provide a sensitive method
for dealing with the difficult problem of chemical dependency in
the [legal] profession.” Unglaub v. Bd. of Law Examiners, 979
S.W.2d 842, 846 (Tex. App.——Austin 1998, pet. denied). Under
this provision, the Texas Board of Law Examiners (“Board”) may
not deny a law license to a person “solely because the
person . . . suffers from chemical dependency.” Tex. Gov’t Code
Ann. § 82.038(d)(1) (Vernon 2005); see also TEX. R. GOVERN. BAR
ADM’N XVI(b). Instead, the Board may recommend that an applicant
receive a two-year probationary license to practice law upon a
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finding that the applicant presently suffers from chemical
dependency. Unglaub, 979 S.W.2d at 846; see also TEX. R. GOVERN.
BAR ADM’N XV(h)(3) (West 2005). The probationary license may be
revoked only if the attorney violates the conditions of the order
granting the license or if he otherwise engages in conduct
justifying disbarment. See Tex. Gov’t Code Ann. § 82.038(h).
After the two-year probationary period expires, the Board may,
upon a finding that the licensee has successfully completed
treatment and has been free from chemical dependency for the
preceding two years, recommend the issuance of a regular license.
See id. § 82.038(f); TEX. R. GOVERN. BAR ADM’N XVI(g)(1). The Board
may recommend an extension or non-renewal of the probationary
license only upon a finding that the licensee violated a
condition of the probation. See TEX. R. GOVERN. BAR ADM’N
XVI(g)(2).
Additionally, the Board found in its order recommending
Conrad’s probationary license that Conrad “possess[es]
conditionally the present good moral character and fitness
required for admission to the practice of law in Texas,” which
finding was “predicated on [Conrad’s] compliance with the
conditions of th[e] order.” The order enumerates as one of the
twenty-one conditions that Conrad “remain in good standing and on
active status with the State Bar of Texas throughout the term of
his probationary license.” As we understand Conrad’s status, he
is fully entitled to practice law in the courts of Texas provided
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that, as he averred in his declaration (under penalty of perjury)
attached to his September 26, 2005 motion to reconsider, he is in
compliance with the conditions of his probation.
Second, it appears to us that Conrad’s motion to appear pro
hac vice may be affected, and perhaps resolved, by the proposed
amendments to Western District of Texas Local Rule AT-1, assuming
that the amendments are approved by the Fifth Circuit Judicial
Council without change. The new Local Rule AT-1(f)(1) would
permit “[a]n attorney who is licensed by the highest court of a
state or another federal district court” to appear pro hac vice
in the Western District of Texas “by permission of the judge
presiding.” Conrad is a member in good standing of the bar of
the Southern District of Texas (according to his petition and the
records of that court), and he thus appears to lie within the new
rule’s scope.
Finally, we note that the district court retains
jurisdiction over this matter, even while Conrad’s petition
remains pending before us. See Woodson v. Surgitek, Inc., 57
F.3d 1406, 1416 (5th Cir. 1995) (“As a general rule, a perfected
appeal from a final judgment or reviewable order of a district
court does vest jurisdiction in the appellate court and
terminates the jurisdiction of the district court. This rule
does not apply to petitions for writ of mandamus.”). Therefore,
if in considering our request the district court decides that
Conrad’s motion should be granted, it may vacate its prior order
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and issue a new order admitting him pro hac vice. If the
district court does so, we ask that the court notify us of its
action in lieu of addressing Conrad’s petition.
For the foregoing reasons, the district court is invited to
address the petition for writ of mandamus pursuant to Rule
21(b)(4) of the Federal Rules of Appellate Procedure. If the
district court opts to address the petition, it may file its
comments with the clerk of court within 30 days of the date of
this order.
RESPONSE REQUESTED PURSUANT TO FED. R. APP. P. 21(b)(4).
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