ACCEPTED 03-15-00007-CV 5188781 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/7/2015 10:42:58 AM JEFFREY D. KYLE CLERK NO. 03-15-00007-CV __________________________________ FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 5/8/2015 2:50:00 PM _________________________________ JEFFREY D. KYLE Clerk JOHN DOE Appellant V. BOARD OF DIRECTORS OF THE STATE BAR OF TEXAS, COMMISSION FOR LAWYER DISCIPLINE; AND LINDA ACEVEDO, IN HER OFFICIAL CAPACITY AS THE CHIEF DISCIPLINARY COUNSEL OF THE STATE BAR OF TEXAS Appellees ______________________________ On Appeal from the 126th Judicial District Court of Travis County, Texas Cause No. D-1-GN-14-001635 ______________________________ APPELLANT’S SUPPLEMENTAL BRIEF ______________________________ WEST, WEBB, ALLBRITTON & GENTRY, GAINES WEST P.C. State Bar No. 21197500 1515 Emerald Plaza gaines.west@westwebblaw.com College Station, Texas 77845 Telephone ~ (979) 694-7000 JENNIFER D. JASPER Facsimile ~ (979) 694-8000 State Bar No. 24027026 jennifer.jasper@westwebblaw.com ROB GEORGE State Bar No. 24067623 rob.george@westwebblaw.com ORAL ARGUMENT REQUESTED APPELLANT’S SUPPLEMENTAL BRIEF 1 TO THE HONORABLE THIRD COURT OF APPEALS: Appellant, John Doe, files the following Supplemental Brief to provide additional support for his position that Texas Rule of Disciplinary Procedure (“Rule”) 2.16 does not apply to keep Disciplinary Proceedings confidential from the complainant. See TEX. R. DISCIPLINARY P. 2.16. This Supplemental Brief specifically supplements Doe’s arguments in C.2., beginning on page 9 of his Appellant’s Brief, entitled “Mootness.” Appellee, the Chief Disciplinary Counsel (“CDC”), maintains that her ex parte recommendation to the Summary Disposition Panel regarding Doe’s grievance cannot be shared with Doe, the complainant, pursuant to Rule 2.16, which generally provides for confidentiality in Disciplinary Proceedings. See id. However, as John Doe has argued in this proceeding, Rule 2.16 simply cannot be construed to apply to the complainant himself. In further support of his position regarding Rule 2.16, Appellant would show: The Texas Rules of Disciplinary Procedure expressly define the scope of “Disciplinary Proceedings” as follows: “‘Disciplinary Proceedings’ include[ ] the processing of a Grievance, the investigation and processing of an Inquiry or Complaint, presentation of a Complaint before a Summary Disposition Panel, and the proceeding before an Evidentiary Panel.” Id. R. 1.06L. Furthermore, the Texas Government Code expressly gives a complainant the right to be present at APPELLANT’S SUPPLEMENTAL BRIEF 2 “all hearings at which testimony is taken,” which includes Evidentiary Panel proceedings—a type of Disciplinary Proceeding. TEX. GOV’T CODE ANN. § 81.072(b)(10); see TEX. R. DISCIPLINARY P. 1.06L, 2.16. These two provisions, when taken together, demonstrate that a complainant actually has a right to be present during a particular portion of the Disciplinary Proceeding (the evidentiary hearing), and in fact, the CDC asserts this position in its Evidentiary Panel proceedings. The CDC’s interpretation that Rule 2.16 makes Disciplinary Proceedings confidential from the complainant cannot stand, in light of the fact that Disciplinary Proceedings include Evidentiary Panels, before which the complainant has an express right to appear. In the absence of a court ruling articulating that 2.16 does not require Disciplinary Proceedings be kept confidential from the complainant, the CDC (Appellee in this case) will continue to incorrectly rely on Rule 2.16 to incorrectly justify its refusals to disclose its recommendations to complainants (similarly situated to Doe) when making its recommendation to the Summary Disposition Panel. And the Summary Disposition Panel will continue to rule on the CDC’s recommendations before a court can intervene, thereby prohibiting review of the CDC’s ex parte recommendation and “no just cause” finding. Thus, this case satisfies the “public interest exception” to the mootness doctrine, and the trial court had jurisdiction to hear the pending declaratory judgment action. See Univ. APPELLANT’S SUPPLEMENTAL BRIEF 3 Scholastic League v. Buchanan, 848 S.W.2d 298, 204 (Tex. App.—Austin 1993, no writ). PRAYER Appellant John Doe prays that this Court reverse the trial court’s dismissal and remand this case for further proceedings. Respectfully submitted, WEST, WEBB, ALLBRITTON & GENTRY, P.C. 1515 Emerald Plaza College Station, Texas 77845-1515 Telephone: (979) 694-7000 Facsimile: (979) 694-8000 By: /s Gaines West GAINES WEST State Bar No. 21197500 gaines.west@westwebblaw.com JENNIFER D. JASPER State Bar No. 24027026 jennifer.jasper@westwebblaw.com ROB GEORGE State Bar No. 24067623 rob.george@westwebblaw.com APPELLANT’S SUPPLEMENTAL BRIEF 4 CERTIFICATE OF COMPLIANCE I certify that this APPELLANT’S SUPPLEMENTAL BRIEF complies with the typeface and word-count requirement set forth in the Rules of Appellate Procedure. This motion has been prepared, using Microsoft Word, in 14-point Times New Roman font for the text and 12-point Times New Roman font for any footnotes. This motion contains 466 words, as determined by the word count feature of the word processing program used to prepare this document, excluding those portions of the notice exempted by TEX. R. APP. P. 9.4(i)(1). /s Gaines West Gaines West APPELLANT’S SUPPLEMENTAL BRIEF 5 CERTIFICATE OF SERVICE On May 7, 2015, the undersigned certifies that he served a copy of APPELLANT’S SUPPLEMENTAL BRIEF on the following in the manner listed below, in compliance with Texas Rules of Appellate Procedure 9.5 and 25.1(e): Cynthia Canfield Hamilton Via email: chamilton@texasbar.com Senior Appellate Counsel Via E-file Notification Office of the Chief Disciplinary Counsel and Certified Mail, RRR State Bar of Texas P.O. Box 12487 Austin, Texas 78711 Paul Homburg Via email: phomburg@texasbar.com Disciplinary Counsel Via E-file Notification Office of the Chief Disciplinary Counsel and Certified Mail, RRR State Bar of Texas 711 Navarro, Suite 750 San Antonio, Texas 78205 Rebecca Stevens Via email: bstevens@texasbar.com Disciplinary Counsel Via E-file Notification Office of the Chief Disciplinary Counsel and Certified Mail, RRR State Bar of Texas P. O. Box 12487 Austin, Texas 78711-2487 /s Gaines West Gaines West APPELLANT’S SUPPLEMENTAL BRIEF 6 1.06. Definitions, TX ST RULES DISC P 1.06 Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 2. Judicial Branch (Refs & Annos) Subtitle G. Attorneys Title 2, Subtitle G--Appendix a-1. Rules of Disciplinary Procedure (Refs & Annos) Part I. General Rules V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 1.06 1.06. Definitions Currentness A. “Address” means the registered address provided by the attorney who is the subject of the Grievance, as that address is shown on the membership rolls maintained by the State Bar on behalf of the Clerk of the Supreme Court at the time of receipt of the Grievance by the Chief Disciplinary Counsel. B. “Board” means the Board of Directors of the State Bar of Texas. C. “Chief Disciplinary Counsel” means the person serving as Chief Disciplinary Counsel and any and all of his or her assistants. D. “Commission” means the Commission for Lawyer Discipline, a permanent committee of the State Bar of Texas. E. “Committee” means any of the grievance committees within a single District. F. “Complainant” means the person, firm, corporation, or other entity, including the Chief Disciplinary Counsel, initiating a Complaint or Inquiry. G. “Complaint” means those written matters received by the Office of the Chief Disciplinary Counsel that, either on the face thereof or upon screening or preliminary investigation, allege Professional Misconduct or attorney Disability, or both, cognizable under these rules or the Texas Disciplinary Rules of Professional Conduct. H. “Director” means a member of the Board of Directors of the State Bar of Texas. I. “Disability” means any physical, mental, or emotional condition that, with or without a substantive rule violation, results in the attorney's inability to practice law, provide client services, complete contracts of employment, or otherwise carry out his or her professional responsibilities to clients, courts, the profession, or the public. J. “Disciplinary Action” means a proceeding brought by or against an attorney in a district court or any judicial proceeding covered by these rules other than an Evidentiary Hearing. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 1.06. Definitions, TX ST RULES DISC P 1.06 K. “Disciplinary Petition” means a pleading that satisfies the requirements of Rule 3.01. L. “Disciplinary Proceedings” includes the processing of a Grievance, the investigation and processing of an Inquiry or Complaint, presentation of a Complaint before a Summary Disposition Panel, and the proceeding before an Evidentiary Panel. M. “District” means disciplinary district. N. “Evidentiary Hearing” means an adjudicatory proceeding before a panel of a grievance committee. O. “Evidentiary Panel” means a panel of the District Grievance Committee performing an adjudicatory function other than that of a Summary Disposition Panel with regard to a Disciplinary Proceeding pending before the District Grievance Committee of which the Evidentiary Panel is a subcommittee. P. “Evidentiary Petition” means a pleading that satisfies the requirements of Rule 2.17. Q. “General Counsel” means the General Counsel of the State Bar of Texas and any and all of his or her assistants. R. “Grievance” means a written statement, from whatever source, apparently intended to allege Professional Misconduct by a lawyer, or lawyer Disability, or both, received by the Office of the Chief Disciplinary Counsel. S. “Inquiry” means any written matter concerning attorney conduct received by the Office of the Chief Disciplinary Counsel that, even if true, does not allege Professional Misconduct or Disability. T. “Intentional Crime” means (1) any Serious Crime that requires proof of knowledge or intent as an essential element or (2) any crime involving misapplication of money or other property held as a fiduciary. U. “Just Cause” means such cause as is found to exist upon a reasonable inquiry that would induce a reasonably intelligent and prudent person to believe that an attorney either has committed an act or acts of Professional Misconduct requiring that a Sanction be imposed, or suffers from a Disability that requires either suspension as an attorney licensed to practice law in the State of Texas or probation. V. “Penal Institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure. W. “Professional Misconduct” includes: 1. Acts or omissions by an attorney, individually or in concert with another person or persons, that violate one or more of the Texas Disciplinary Rules of Professional Conduct. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 1.06. Definitions, TX ST RULES DISC P 1.06 2. Attorney conduct that occurs in another state or in the District of Columbia and results in the disciplining of an attorney in that other jurisdiction, if the conduct is Professional Misconduct under the Texas Disciplinary Rules of Professional Conduct. 3. Violation of any disciplinary or disability order or judgment. 4. Engaging in conduct that constitutes barratry as defined by the law of this state. 5. Failure to comply with Rule 13.01 of these rules relating to notification of an attorney's cessation of practice. 6. Engaging in the practice of law either during a period of suspension or when on inactive status. 7. Conviction of a Serious Crime, or being placed on probation for a Serious Crime with or without an adjudication of guilt. 8. Conviction of an Intentional Crime, or being placed on probation for an Intentional Crime with or without an adjudication of guilt. X. “Reasonable Attorneys' Fees,” for purposes of these rules only, means a reasonable fee for a competent private attorney, under the circumstances. Relevant factors that may be considered in determining the reasonableness of a fee include but are not limited to the following: 1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2. The fee customarily charged in the locality for similar legal services; 3. The amount involved and the results obtained; 4. The time limitations imposed by the circumstances; and 5. The experience, reputation, and ability of the lawyer or lawyers performing the services. Y. “Respondent” means any attorney who is the subject of a Grievance, Complaint, Disciplinary Proceeding, or Disciplinary Action. Z. “Sanction” means any of the following: 1. Disbarment. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 1.06. Definitions, TX ST RULES DISC P 1.06 2. Resignation in lieu of discipline. 3. Indefinite Disability Suspension. 4. Suspension for a term certain. 5. Probation of suspension, which probation may be concurrent with the period of suspension, upon such reasonable terms as are appropriate under the circumstances. 6. Interim suspension. 7. Public reprimand. 8. Private reprimand. The term “Sanction” may include the following additional ancillary requirements. a. Restitution (which may include repayment to the Client Security Fund of the State Bar of any payments made by reason of Respondent's Professional Misconduct); and b. Payment of Reasonable Attorneys' Fees and all direct expenses associated with the proceedings. AA. “Serious Crime” means barratry; and felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes. BB. “State Bar” means the State Bar of Texas. CC. “Summary Disposition Panel” means a panel of the Committee that determines whether a Complaint should proceed or should be dismissed based upon the absence of evidence to support a finding of Just Cause after a reasonable investigation by the Chief Disciplinary Counsel of the allegations in the Grievance. DD. “Wrongfully Imprisoned Person” has the meaning assigned by Section 501.101, Government Code. Credits Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by orders of Dec. 29, 2003, eff. Jan. 1, 2004; May 14, 2008, Aug. 20, 2008, eff. Sept. 1, 2008; Oct. 14, 2013, eff. Nov. 1, 2013. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 1.06. Definitions, TX ST RULES DISC P 1.06 Notes of Decisions (26) V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 1.06, TX ST RULES DISC P 1.06 Current with amendments received through 3/15/2015 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 2.16. Confidentiality, TX ST RULES DISC P 2.16 Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 2. Judicial Branch (Refs & Annos) Subtitle G. Attorneys Title 2, Subtitle G--Appendix a-1. Rules of Disciplinary Procedure (Refs & Annos) Part II. The District Grievance Committees V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.16 2.16. Confidentiality Currentness A. All members and staff of the Office of Chief Disciplinary Counsel, Board of Disciplinary Appeals. Committees, and Commission shall maintain as confidential all Disciplinary Proceedings and associated records, except that: 1. the pendency, subject matter, status of an investigation, and final disposition, if any, may be disclosed by the Office of Chief Disciplinary Counsel or Board of Disciplinary Appeals if the Respondent has waived confidentiality, the Disciplinary Proceeding is based on conviction of a serious crime, or disclosure is ordered by a court of competent jurisdiction; 2. if the Evidentiary Panel finds that professional misconduct occurred and imposes any sanction other than a private reprimand. a. the Evidentiary Panel's final judgment is a public record from the date the judgment is signed; and b. once all appeals, if any, have been exhausted and the judgment is final, the Office of Chief Disciplinary Counsel shall, upon request, disclose all documents, statements, and other information relating to the Disciplinary Proceeding that came to the attention of the Evidentiary Panel during the Disciplinary Proceeding; 3. the record in any appeal to the Board of Disciplinary Appeals from an Evidentiary Panel's final judgment, other than an appeal from a judgment of private reprimand, is a public record; and 4. facts and evidence that are discoverable elsewhere are not made confidential merely because they are discussed or introduced in the course of a Disciplinary Proceeding. B. The deliberations and voting of an Evidentiary Panel are strictly confidential and not subject to discovery. No person is competent to testify as to such deliberations and voting. C. Rule 6.08 governs the provision of confidential information to authorized agencies investigating qualifications for admission to practice, attorney discipline enforcement agencies, law enforcement agencies, the State Bar's Client Security Fund, the State © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 2.16. Confidentiality, TX ST RULES DISC P 2.16 Bar's Lawyer Assistance Program, the Supreme Court's Unauthorized Practice of Law Committee and its subcommittees, and the Commission on Judicial Conduct. Credits Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Renumbered from Rule 2.15 and amended by orders of Dec. 29, 2003, eff. Jan. 1, 2004. Amended by order of Dec. 7, 2009, eff. Jan. 1, 2010. Notes of Decisions (1) V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.16, TX ST RULES DISC P 2.16 Current with amendments received through 3/15/2015 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072 Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 2. Judicial Branch (Refs & Annos) Subtitle G. Attorneys Chapter 81. State Bar (Refs & Annos) Subchapter E. Discipline (Refs & Annos) V.T.C.A., Government Code § 81.072 § 81.072. General Disciplinary and Disability Procedures Effective: September 1, 2013 Currentness (a) In furtherance of the supreme court's powers to supervise the conduct of attorneys, the court shall establish disciplinary and disability procedures in addition to the procedures provided by this subchapter. (b) The supreme court shall establish minimum standards and procedures for the attorney disciplinary and disability system. The standards and procedures for processing grievances against attorneys must provide for: (1) classification of all grievances and investigation of all complaints; (2) a full explanation to each complainant on dismissal of an inquiry or a complaint; (3) periodic preparation of abstracts of inquiries and complaints filed that, even if true, do or do not constitute misconduct; (4) an information file for each grievance filed; (5) a grievance tracking system to monitor processing of grievances by category, method of resolution, and length of time required for resolution; (6) notice by the state bar to the parties of a written grievance filed with the state bar that the state bar has the authority to resolve of the status of the grievance, at least quarterly and until final disposition, unless the notice would jeopardize an undercover investigation; (7) an option for a trial in a district court on a complaint and an administrative system for attorney disciplinary and disability findings in lieu of trials in district court, including an appeal procedure to the Board of Disciplinary Appeals and the supreme court under the substantial evidence rule; (8) an administrative system for reciprocal and compulsory discipline; © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072 (9) interim suspension of an attorney posing a threat of immediate irreparable harm to a client; (10) authorizing all parties to an attorney disciplinary hearing, including the complainant, to be present at all hearings at which testimony is taken and requiring notice of those hearings to be given to the complainant not later than the seventh day before the date of the hearing; (11) the commission adopting rules that govern the use of private reprimands by grievance committees and that prohibit a committee: (A) giving an attorney more than one private reprimand within a five-year period for a violation of the same disciplinary rule; or (B) giving a private reprimand for a violation: (i) that involves a failure to return an unearned fee, a theft, or a misapplication of fiduciary property; or (ii) of a disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09(d), Texas Disciplinary Rules of Professional Conduct; and (12) distribution of a voluntary survey to all complainants urging views on grievance system experiences. (b-1) In establishing minimum standards and procedures for the attorney disciplinary and disability system under Subsection (b), the supreme court must ensure that the statute of limitations applicable to a grievance filed against a prosecutor that alleges a violation of the disclosure rule does not begin to run until the date on which a wrongfully imprisoned person is released from a penal institution. (b-2) For purposes of Subsection (b-1): (1) “Disclosure rule” means the disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09(d), Texas Disciplinary Rules of Professional Conduct. (2) “Penal institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure. (3) “Wrongfully imprisoned person” has the meaning assigned by Section 501.101. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072 (c) In addition to the minimum standards and procedures provided by this chapter, the supreme court, under Section 81.024 shall prepare, propose, and adopt rules it considers necessary for disciplining, suspending, disbarring, and accepting resignations of attorneys. (d) Each attorney is subject to the Texas Rules of Disciplinary Procedure and the Texas Disciplinary Rules of Professional Conduct. (e) The state bar shall establish a voluntary mediation and dispute resolution procedure to: (1) attempt to resolve each allegation of attorney misconduct that is: (A) classified as an inquiry under Section 81.073(a)(2)(A) because it does not constitute an offense cognizable under the Texas Disciplinary Rules of Professional Conduct; or (B) classified as a complaint and subsequently dismissed; and (2) facilitate coordination with other programs administered by the state bar to address and attempt to resolve inquiries and complaints referred to the voluntary mediation and dispute resolution procedure. (e-1) All types of information, proceedings, hearing transcripts, and statements presented during the voluntary mediation and dispute resolution procedure established under Subsection (e) are confidential to the same extent the information, proceedings, transcripts, or statements would be confidential if presented to a panel of a district grievance committee. (f) Responses to the survey provided for in Subsection (b)(12) may not identify either the complainant or attorney and shall be open to the public. The topics must include: (1) treatment by the grievance system staff and volunteers; (2) the fairness of grievance procedures; (3) the length of time for grievance processing; (4) disposition of the grievance; and (5) suggestions for improvement of the grievance system. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 § 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072 (g) A person may not maintain an action against a complainant or witness in a disciplinary proceeding based on a communication made by the complainant or witness to the commission, a grievance committee, or the chief disciplinary counsel. The immunity granted by this subsection is absolute and unqualified. (h) The state bar or a court may not require an attorney against whom a disciplinary action has been brought to disclose information protected by the attorney-client privilege if the client did not initiate the grievance that is the subject of the action. (i) A panel of a district grievance committee of the state bar that votes on a grievance matter shall disclose to the complainant and the respondent in the matter the number of members of the panel: (1) voting for a finding of just cause; (2) voting against a finding of just cause; and (3) abstaining from voting on the matter. (j) A quorum of a panel of a district grievance committee of the state bar must include one public member for each two attorney members. (k) A member of a panel of a district grievance committee of the state bar may vote on a grievance matter to which the panel was assigned only if the member is present at the hearing at which the vote takes place. (l) A person may be appointed to serve on a panel of a district grievance committee of the state bar only if the person is a member of the district grievance committee from which the panel was assigned and the person was appointed to serve on the committee in strict accordance with the Texas Rules of Disciplinary Procedure. (m) A panel of a district grievance committee of the state bar may not be changed in size for the purpose of obtaining a quorum on the panel without the approval of the complainant and the respondent in the grievance matter to which the panel was assigned. (n) A member of a panel of a district grievance committee of the state bar may not be substituted with another member of the district grievance committee on the day of the hearing for which the panel was assigned without the approval of the complainant and the respondent in the grievance matter. (o) Whenever a grievance is either dismissed as an inquiry or dismissed as a complaint in accordance with the Texas Rules of Disciplinary Procedure and that dismissal has become final, the respondent attorney may thereafter deny that a grievance was pursued and may file a motion with the tribunal seeking expunction of all records on the matter, other than statistical or identifying information maintained by the chief disciplinary counsel pertaining to the grievance. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 § 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072 Credits Added by Acts 1987, 70th Leg., ch. 148, § 3.01, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 795, § 20, eff. Sept. 1, 1991; Acts 2001, 77th Leg., ch. 1436, § 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 227, §§ 15, 16, eff. Sept. 1, 2003; Acts 2013, 83rd Leg., ch. 450 (S.B. 825), § 1, eff. Sept. 1, 2013. Notes of Decisions (20) V. T. C. A., Government Code § 81.072, TX GOVT § 81.072 Current through the end of the 2013 Third Called Session of the 83rd Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263 Opinion 848 S.W.2d 298 Court of Appeals of Texas, KIDD, Justice. Austin. The University Interscholastic League and its Executive UNIVERSITY INTERSCHOLASTIC Director, Bailey Marshall, *300 (collectively hereinafter LEAGUE and Bailey Marshall, Appellants, the “UIL”) appeal the judgment of the trial court granting a v. permanent injunction against the enforcement of the UIL's Bruce LaFeyette BUCHANAN, et al., Appellees. over–19 rule. 1 We will affirm the judgment of the district UNIVERSITY INTERSCHOLASTIC LEAGUE court. and Dr. Bailey Marshall, Appellants, v. Phillip Earl BOMAR, Jr., et al., Appellees. FACTUAL BACKGROUND Nos. 3–92–108–CV, 3–92–161–CV. | Feb. 3, Composed of representatives of Texas school districts, the 1993. | Rehearing Overruled March 31, 1993. UIL is a voluntary organization that regulates, among other things, the competitive athletics of the junior and senior Learning disabled high school athletes sought to permanently high school student athletes in Texas. This case involves enjoin organization regulating high school athletics from a challenge to section 400(a) of the UIL Constitution and enforcing rule precluding participation by athletes over 19 Contest Rules (the “over–19 rule”) which states: “Subject to years old. The 331st and 53rd Judicial District Courts, the other sections of this subchapter, an individual is eligible Travis County, B.B. Schraub, J., granted the injunction, and to participate in a League varsity contest as a representative of organization appealed. The Court of Appeals, Kidd, J., held a participant school if that individual ... is less than 19 years that: (1) athletes were “disabled” under Rehabilitation Act; old on September 1 preceding the contest....” (2) organization failed to reasonably accommodate athletes by not allowing exceptions to rule; (3) students' failure The UIL states that the underlying purpose of the over– to exhaust remedies under Individuals with Disabilities 19 rule is to ensure the safety of the participating student Education Act did not deprive trial court of jurisdiction; and athletes and the equality of competitors. It argues that one (4) “public interest exception” to mootness doctrine permitted policy justification for the over–19 rule is the avoidance of review. potential injury which might result if younger, less developed high school students are required to compete against older Affirmed. students. Furthermore, the UIL argues that the over–19 rule discourages the practice of “redshirting,” i.e., having students repeat grades so that they will be more mature and better Attorneys and Law Firms athletes during their high school years. The UIL permits no *299 William C. Bednar, Jr., Eskew, Muir & Bednar, exception to or waiver of the over–19 rule based on special Austin, for University Interscholastic League. circumstances of individual students. James R. Raup, McGinnis, Lochridge & Kilgore, Austin, for Appellees, Bruce Buchanan and Phillip Bomar (the Austin Independent School Dist. and Dr. Jim Hensley. “Students”), obtained permanent injunctions allowing them to participate in the 1991 football season. The final judgments Diane M. Henson, Graves, Dougherty, Hearon & Moody, rendered in these causes stated that the over–19 rule violated Austin, for Bruce LaFeyette Buchanan and Phillip Earl Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. Bomar, Jr. § 794 (West Supp.1992) (“Section 504”), as applied to the Students. Section 504 provides in pertinent part: Leonard J. Schwartz, Schwartz & Eichelbaum, P.C., Austin, for Dallas Independent School Dist. and Dr. Marvin E. No otherwise qualified individual Edwards. with handicaps in the United States, as defined in section 706(8) of Before CARROLL, C.J., and JONES and KIDD, JJ. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263 this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied CROSS–CLAIMS OF THE SCHOOL DISTRICTS the benefits of, or be subjected to discrimination under any program or Both school districts filed cross-claims against the UIL, activity receiving Federal financial stating that the UIL's mandatory forfeiture rule caused them assistance.... to violate the rights of the Students. Section 700(a)(2)(C) (ii) of the UIL Constitution and Contest Rules (the UIL's 29 U.S.C.A. § 794. “mandatory forfeiture rule”) provides that if a school allows a student who is finally determined ineligible to participate The factual bases for the permanent injunctions involving the in a UIL contest under a court order, the school must forfeit Students are as follows. all contests in which the student participated. In the past, the UIL has enforced the mandatory forfeiture rule to require Bruce Buchanan that a school forfeit all of its contests in which the litigating Buchanan turned nineteen years old before he entered the student participated even though the student's participation twelfth grade at Travis High School of the Austin Independent was pursuant to a lawful court-ordered injunction. 3 School District (“Austin ISD”). Because he had learning disabilities, he had repeated the first and seventh grades. In October 1991, the trial court issued temporary orders During ninth grade, Buchanan began participating in his enjoining the enforcement of the over–19 rule against the school's football program. Although he was nineteen at the Students and the mandatory forfeiture rule against Austin ISD start of his senior year, Buchanan was below the average and Dallas ISD. These two causes were then consolidated weight and height of his team members, and he never was a for purposes of trial and appeal. After a trial on the merits, starter on the team. the district court rendered a final judgment in favor of the Students and the school districts, enjoining the enforcement Both Buchanan's mother and his Admission, Review and of the two rules. Dismissal (ARD) Committee 2 requested a waiver from the over–19 rule. The UIL responded that there were “no rules From this judgment, the UIL appeals bringing forth four which allow for a waiver of the 19–year–old rule.” Buchanan points of error. instituted this lawsuit against the UIL and its director, and later joined Austin ISD and Dr. *301 Jim Hensley, the Superintendent of Austin ISD, as defendants in the suit to IMPACT OF THE REHABILITATION enjoin the enforcement of the rule. ACT ON THE OVER–19 RULE [1] [2] In order to obtain injunctive relief, an applicant Phillip Bomar must establish the existence of a wrongful act, imminent Bomar was also nineteen years of age at the start of his senior harm, and irreparable injury, and the absence of an adequate year. He had repeated his fourth and seventh grades, and was remedy at law. Hues v. Warren Petroleum Co., 814 classified by his school district, Dallas Independent School S.W.2d 526, 529 (Tex.App.—Houston [14th Dist.] 1991, writ District (“Dallas ISD”), as learning disabled. Like Buchanan, denied); Priest v. Texas Animal Health Comm'n, 780 S.W.2d Bomar began playing football for his high school, Justin F. 874, 875 (Tex.App.—Dallas 1989, no writ). The decision Kimball High School. Bomar was average in size compared to grant or deny a permanent injunction lies within the trial to the other members of his football team and was a starting court's sound discretion, and appellate review is restricted to linebacker during his junior year of high school. whether the action involved a clear abuse of discretion. Hues, 814 S.W.2d at 529; Priest, 780 S.W.2d at 875. Bomar's mother and high school principal applied for a waiver of the over–19 rule for Bomar, which the UIL refused. In [3] [4] The UIL argues in its first two points of error that response, Bomar filed this action against the UIL, its director, the trial court erred in granting the permanent injunctions Dallas ISD, and Dr. Marvin Edwards, the Superintendent of against the over–19 rule and in awarding attorneys' fees. 4 In Dallas ISD. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263 its first point of error, the UIL alleges that the rule does not Although the UIL provides a waiver procedure for some discriminate solely on the basis of the Students' handicaps; eligibility rules, e.g., the four-year eligibility rule, it fails the UIL maintains that the Students are ineligible due to their to furnish such a process for the over–19 rule. Since the ages which are determined by their birth dates. The rule and UIL already utilizes a waiver procedure for some rules, the its purposes, it contends, apply equally to both handicapped evidence indicates that instituting such a procedure for the and non-handicapped students. over–19 rule might be a reasonable accommodation in the UIL program to ensure that handicapped persons achieve *302 We agree that the UIL's enforcement of its over–19 meaningful access to the competitions regulated by the UIL. rule as to these Students was not on the basis of a current We find the U.S. District Court's reasoning on this issue in handicap or because of a history of being handicapped. Booth v. University Interscholastic League, No. A–90–CA– However, the record clearly demonstrates that both Students 764 (W.D.Tex. Oct. 4, 1990) (case dismissed as moot Jan. 14, repeated grades in school because of learning disabilities. 1991), particularly persuasive: Had they not experienced difficulties in the classroom and progressed through school at a pace slower than most [T]o uphold the [UIL's] blanket policy students, they would have turned nineteen after September 1 against consideration of the Plaintiff's of their senior year and thus would have been age-eligible to circumstances in this case would be participate in interscholastic athletics. to undermine the objectives of the Rehabilitation Act without advancing The United States District Court, in Doe v. Marshall, 459 the policies behind the 19 year-old F.Supp. 1190 (S.D.Tex.1978), vacated and remanded on eligibility rule. There is no evidence other grounds, 622 F.2d 118 (5th Cir.1980), cert. denied, before the Court to suggest that the [UIL] bases its decision to bar the 451 U.S. 993, 101 S.Ct. 2336, 68 L.Ed.2d 855 (1981), 5 Plaintiff from playing high school invoked a balancing test of the harms inflicted upon the football on any particular harm that various parties in its determination of whether to grant a might result if he is allowed to preliminary injunction of a UIL rule. Id. at 1192. In the play, or on anything other than a present cases, evidence demonstrated that the Students would policy of strictly enforcing its rules. benefit emotionally by participating in competitive athletics. But the Rehabilitation Act requires The evidence did not show that these Students had been that federally assisted programs do involved in redshirting or that they presented a danger to other more for those who fall within its student athletes; the concerns that made the rule necessary ambit. For these reasons, requiring the are not present in these causes and the UIL is not harmed. [UIL] to give special consideration Thus, the equities before the trial court weighed in favor of to the Plaintiff based on his history enjoining the enforcement of the rule. of being handicapped is a reasonable accommodation. The United States Supreme Court has stated that “an otherwise qualified handicapped individual must be provided Booth, at 11–12. The Students in these causes are entitled with meaningful access to the benefit that the grantee offers.... to special consideration by the UIL to guarantee that [T]o assure meaningful access, reasonable accommodations the objectives of Section 504 are effectuated. A waiver in the grantee's program or benefit may have to be made.” mechanism for the over–19 rule would permit the UIL to Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, consider the facts of particular situations in order to make 83 L.Ed.2d 661 (1985) (discussing Southeastern Community individualized determinations as to the enforcement of the College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d rule. Such determinations are reasonable accommodations 980 (1979)) (emphasis added). Furthermore, the United States which would advance both the purposes of Section 504 Court of Appeals in Brennan v. Stewart, 834 F.2d 1248, 1262 and the policies behind the over–19 rule. Under *303 (5th Cir.1988), concluded that “our precedent requires that the these factual circumstances, the “no-exception” policy to ‘reasonable accommodation’ question be decided as an issue the over–19 rule must yield to Section 504's reasonable of fact....” accommodation requirement established by the United States Supreme Court in Alexander. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263 Accordingly, we hold that the trial court did not abuse its discretion in enjoining the enforcement of the over–19 rule. Points of error one and two are overruled. MANDATORY FORFEITURE RULE In its fourth and final point of error, the UIL contends that EXHAUSTION OF REMEDIES the trial court erred in enjoining the mandatory forfeiture rule and in awarding attorneys' fees. It insists that “the rule is [5] In its third point of error, the UIL alleges that, because reasonably related to a legitimate state purpose and is not the Students did not exhaust the administrative remedies arbitrary, capricious, or fundamentally unfair.” under the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C.A. §§ 1400–1484 (West Supp.1992), 6 Issue of Mootness the district court lacked jurisdiction over the causes. The Students reurge this Court to dismiss the appeal as Specifically, it complains that the Students did not comply with section 1415(f) of the IDEA which states, “before the moot. 8 They argue that since the 1991 football season has filing of a civil action under [the Rehabilitation Act and] ended and they have graduated, an active controversy *304 such laws seeking relief that is also available under this no longer exists. The school districts respond by urging that subchapter, the procedures under subsections (b)(2) and (c) of such action on our part would vacate the trial court's judgment this section shall be exhausted to the same extent as would be and would permit the UIL to invoke the sanctions contained required had the action been brought under this subchapter.” in the mandatory forfeiture rule. 20 U.S.C.A. § 1415(f). The applicable remedy under this statute consists of a due process hearing and subsequent [6] [7] [8] The mootness doctrine is well established. review for any complaint raised by a handicapped child or Appellate courts only determine cases in which an actual its parents regarding the child's education. 20 U.S.C.A. § controversy exists. Camarena v. Texas Employment Comm'n, 1415(b)(2), (c). The UIL maintains that the Students did not 754 S.W.2d 149, 151 (Tex.1988); Texas Educ. Agency, 797 comply with this prerequisite for civil suits because they did S.W.2d at 369. The issue of whether an injunction is valid not request a due process hearing to contest the exclusion of becomes moot when the injunction does not continue to have effect. See Parr v. Stockwell, 322 S.W.2d 615, 616 interscholastic athletics from their IEPs. 7 (Tex.1959); Texas Educ. Agency, 797 S.W.2d at 369; Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 18 (Tex.App.— The Students respond that the IDEA and Section 504 Houston [1st Dist.] 1988, no writ). An appellate court must are different statutes with different purposes. They urge set aside the judgment and dismiss the cause when an appeal that while the IDEA strives to assure that handicapped is moot. Texas Educ. Agency, 797 S.W.2d at 369; Texas Parks children receive appropriate free public education, Section & Wildlife Dep't v. Texas Ass'n of Bass Clubs, 622 S.W.2d 504 prohibits discrimination against handicapped persons. 594, 596 (Tex.App.—Austin 1981, writ ref'd n.r.e.). See Smith v. Robinson, 468 U.S. 992, 1016, 104 S.Ct. 3457, 3470, 82 L.Ed.2d 746 (1984). The Students argue that their [9] Two exceptions to the mootness doctrine currently complaint is against the UIL for discrimination on the basis exist: (1) the “capable of repetition exception” and (2) the of their handicaps, not against the school districts for denial “collateral consequences exception.” General Land Office v. of a free appropriate public education; hence, relief was only OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.1990). However, available under Section 504. They argue that, because the UIL neither exception applies to these causes. See Spring Branch is not vested with the duty to provide a free appropriate public I.S.D., 764 S.W.2d at 18–19. education under the IDEA, the Students could not assert their action against the UIL under the IDEA. The record reflects The UIL urges this Court to avoid dismissal by adopting that the school districts applied to the UIL for waivers to the a new exception to the mootness doctrine, the “public rule which the UIL denied. Therefore, the Students and their interest exception.” According to the UIL, thirty-six states school districts acted in accordance with the UIL rules, and have recognized the “public interest exception,” which the cause of action was governed by Section 504 and not the allows appellate review of a question of considerable public IDEA. We agree with the Students regarding this exhaustion importance if that question is capable of repetition between of remedies point, and thus we overrule the UIL's third point either the same parties or other members of the public but for of error. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263 exception” to the mootness doctrine, and adhere to our earlier some reason evades appellate review. The UIL points out that ruling overruling the Students' motion to dismiss the appeal other states have applied this doctrine in high school athletic as moot. controversies such as this one. Because we elect to review these causes under the “public In Texas Education Agency, 797 S.W.2d at 369, under interest exception” to the mootness doctrine, and because we similar facts as these, we determined that the appeal was affirm the lower court's final judgment that the over–19 rule moot because the football eligibility of the litigating students violates Section 504 of the Rehabilitation Act, we affirm the had expired. See also Spring Branch I.S.D., 764 S.W.2d district court's ruling that the Students were eligible to play at 18. However, these cases are distinguishable from the football during the 1991 season. Therefore, since there is no instant cause. In neither of those cases was the question of basis for the UIL to invoke the mandatory forfeiture rule, we attorneys' fees involved. 9 Furthermore, in the instant cause, have no need to address its fourth point of error. the school districts, which are parties to this appeal, have a direct interest in the continued viability of the district court judgment to prevent the UIL from enforcing the mandatory forfeiture rule. See Mahavongsanan v. Hall, 529 F.2d 448 CONCLUSION (5th Cir.1976) (Student brought action to compel university to Finding no error, the judgment of the district court is affirmed. grant a degree. After injunctive relief was granted, university awarded degree and appealed the judgment. The Fifth Circuit Court of Appeals held that the case was not moot because Parallel Citations the legal interests of the parties continued to be adverse.). Therefore, because of these distinguishing facts, we have 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263 decided to review the case pursuant to a “public interest Footnotes 1 As a preliminary matter, we address the Students' motion to dismiss this appeal as moot. For reasons discussed later in this opinion, we decline to dismiss the appeal as moot. 2 The ARD Committee is composed of, at a minimum, a school administrator, a special education teacher, a regular education teacher, and the child's parent. Other persons may be included in the ARD Committee if determined to be necessary. One of the functions of the ARD Committee is to develop an individualized educational plan (IEP) for the student. Buchanan's IEP did not include interscholastic football as part of his program. Buchanan never petitioned for an administrative appeal of the decision of the ARD Committee to the Texas Education Agency. Buchanan's mother testified that because the ARD Committee recommended a waiver from the over–19 rule, she agreed with its decision, and thus did not feel it was necessary to appeal the decision. 3 See Texas Educ. Agency v. Dallas Indep. Sch. Dist., 797 S.W.2d 367, 369 (Tex.App.—Austin 1990, no writ). (This Court held that the appeal in that case was moot, and therefore the underlying order was vacated. Accordingly, the UIL's determination of ineligibility became final and triggered the enforcement of the mandatory forfeiture rule). 4 As a preliminary matter, the UIL contends in its second point of error that the Students do not meet the definition of “qualified handicapped persons” under section 504 of the Rehabilitation Act. After reviewing the Act and its attendant regulations, we reject this argument and conclude that both students meet the definition of “qualified handicapped persons.” 5 Although not controlling, this Court looks to federal precedent for its persuasive value. 6 Among the stated purposes of IDEA are to assure that all children with disabilities have available to them, within the time periods specified in section 1412(2) (B) of this title, a free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of children with disabilities and their parents or guardians are protected.... 20 U.S.C.A. § 1400(c). 7 The UIL admitted in oral argument that had the school districts declared the Students eligible under the IDEA, the UIL would not have abided by such determination. We also note that the school districts requested waivers from the UIL of © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263 the over–19 rule, and therefore the Students had no need to invoke an administrative procedure designed to request affirmative action from the school authorities. 8 We overruled the Students' original motion to dismiss as moot. 9 If we moot this appeal and the judgment of the district court is vacated, the judgment for attorneys' fees is vacated as well. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6