(dissenting).
Once again I record my dissent to the stance of a majority of the Court against professional misconduct of an attorney. See In re Pena, Tex., 511 S.W.2d 931, opinion delivered June 19, 1974.
My views have been ably and forcefully expressed by Chief Justice Preslar of the intermediate court, 502 S.W.2d 595, 597. I am content to write briefly and only for the purpose of emphasizing considerations I deem particularly significant.
The trial court found these facts that are not attacked by Ingram: that he failed to pay over monies to his client in violation of his trust and agreement; that he converted said monies to his own use and benefit; that he was guilty of and did commit fraud and deceit towards his client; that he violated the Canons of Ethics of the State Bar of Texas in commingling money belonging to his client with his private property and using the same for his own benefit; that he gave false testimony under oath to the District 16-A Grievance Committee of the State Bar of Texas to deceive said Committee and impede the proper procedures and enforcement of the State Bar Rules and the laws of Texas.
Notwithstanding, the trial court did no more than suspend Ingram from the practice of law for a period of three years. I would hold that it was an abuse of discretion under these unattacked findings to do less than disbar Ingram. I am in like disagreement with State v. Pevehouse, 483 S.W.2d 565, (Tex.Civ.App.1972, writ ref’d n. r. e.). Pevehouse is cited in the majority opinion here and was given controlling effect by the intermediate court.
Tex. Bar Ass’n, Rules and Canons of Ethics, art. XII, § 28 (1973), under which the disbarment suit was instituted against Ingram, speaks without distinction of a determination by the trial court of whether the guilty attorney “shall be (a) reprimanded, or (b) suspended from practice, . . . or (c) disbarred.” Just as the majority says that whether Ingram should have been disbarred or suspended was a matter addressed to the sound discretion of the trial court, so must it follow under the statute that had the trial court done no more than reprimand Ingram here, this likewise would have been a matter addressed to discretion. It seems to me that the rationale of the majority opinion necessarily rests upon the statutory investment of discretion in the trial court in disbarment proceedings instituted by the State Bar, and not upon the particular facts as to Ingram which are admittedly serious.
In my view, the unchallenged findings establishing the professional misconduct of Ingram invoke Tex.Rev.Civ.Stat.Ann. Art. 320a-l, § 6 (1973) and Tex. Bar Ass’n, Rules and Canons of Ethics, art. XII, § 9 (1973). Section 6 of Article 320a-l provides :
“No disbarment proceeding shall be instituted against any attorney except in the district court located in the county of said attorney’s residence, nor shall any attorney be suspended until such attorney has been convicted of the charge pending against him, in a court of competent jurisdiction in the county of such attorney’s residence. Provided, however, upon proof of conviction of an attorney in any trial court of any felony involving moral turpitude or of any misdemeanor involving the theft, embezzlement, or fraudulent appropriation of money or other property, the district court of the county of the residence of the convicted attorney shall enter an order suspending said attorney from the practice of law during the pendency of any appeal from *255said conviction. An attorney who has been given probation after such conviction shall be suspended from the practice of law for the period of his probation. Upon proof of final conviction of any felony involving moral turpitude or of any misdemeanor involving theft, embezzlement, or fraudulent appropriation of money or other property, where probation has not been given or has been revoked, the district court of the county of the residence of the convicted attorney shall enter a judgment disbarring him.”
Section 9 of the Rules and Canons of Ethics defines professional misconduct as follows:
“a. Professional misconduct consists of any of the following:
(1) Misconduct as specified in DR 1-102, Code of Professional Responsibility; and
(2) A violation of Art. 430, Penal Code (Barratry).
b. Professional Misconduct constitutes grounds for disciplinary action regardless of whether the act or acts in question may constitute an offense under the Penal Code of this State, and whether the accused member is being prosecuted for, or has been acquitted of the violation of the Penal Code.
c. Disbarment shall be compulsory as provided in Sec. 6 of Art. 320a-1 (State Bar Act).
d. The Code of Professional Responsibility is cumulative of all laws of the State of Texas relating to the professional conduct of lawyers and to the practice of law.
I would hold that a trial court abuses its discretion where its judgment in a disciplinary proceeding is less than disbarment when the unchallenged facts found by the court establish professional misconduct that would render disbarment compulsory under criminal process.
The gravity of this matter to the public, as well as to the legal profession, is such that I cannot give my consent to the action of the majority and so respectfully dissent.
REAVLEY and JOHNSON, JJ., join in this dissent.