Stephens v. SBOT (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Keyes)
(petition to reinstate law license denied, summary judgment affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Hanks
01-08-00210-CV McCuller C. Stephens, III v. State Bar of Texas
Appeal from 80th District Court of Harris County
Trial Court Judge: Hon. Lynn Bradshaw-Hull
M E M O R A N D U M O P I N I O N
The trial court granted summary judgment for the appellee, the State Bar of Texas ("the Bar"), and
dismissed appellant McCuller C. Stephens' petition to reinstate his licence to practice law. In his sole
issue, Stephens argues that the grant of summary judgment was improper because he complied with
the rules for reinstatement.
We affirm.
Background
The Bar revoked Stephens' license to practice law on April 19, 2001 as a consequence of his felony
conviction for witness tampering. On April 12, 2007, Stephens applied to the Bar for reinstatement.
The Bar responded on May 23, 2007 with a request for special exceptions, and Stephens answered
on the same day, stating that the special exceptions lacked merit. On January 18, 2008, the Bar filed
a traditional motion for summary judgment claiming that Stephens failed to follow the procedural
requirements for reinstatement. The Bar based its motion on the grounds that: (1) Stephens did not
publish notice in the Texas Bar Journal; (2) his work history did not include sufficiently specific dates;
and (3) his application for reinstatement included a false statement of material fact because after his
disbarment he filed for bankruptcy but in his application he stated that he had not been involved in
any civil suits since his disbarment.
On January 22, 2008, four days after the Bar filed its motion for summary judgment, Stephens filed
an amended original petition for reinstatement. The amended original petition disclosed Stephens'
involvement in a civil suit-his bankruptcy-but maintained that Stephens did not know the specific
dates of his contract employment with the individual law firms listed in his work history. Stephens
responded to the Bar's motion for summary judgment on February 6, 2007. He asserted that he had
filed notice with the Texas Bar Journal indicating his intention to apply for reinstatement, that he
remained unaware of the specific dates of employment with the various firms for which he had done
contract work, and that the amended original petition for reinstatement, which included disclosure of
his bankruptcy, superseded the prior answer and therefore his petition for reinstatement no longer
contained a false statement of material fact. (1) The trial court granted the Bar's motion for summary
judgment on March 17, 2008 without specifying a ground. Stephens appeals the trial court's ruling.
Standard of Review
Because summary judgment is a question of law, we review a trial court's summary judgment
decision de novo. Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The
standard of review for a traditional summary judgment motion is threefold: (1) the movant must show
that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law;
(2) in deciding whether there is a disputed material fact issue precluding summary judgment, the
reviewing court must take evidence favorable to the nonmovant as true; and (3) must indulge every
reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant's favor.
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see Tex. R. Civ. P. 166a(c).
To be considered by the trial court or reviewing court, summary judgment evidence must be
presented in a form that would be admissible at trial. United Blood Servs. v. Longoria, 938 S.W.2d
29, 30 (Tex. 1997). When the movant has produced evidence sufficient to support its motion for
summary judgment, the nonmovant is required to produce summary judgment evidence that will
dispute, but not necessarily disprove, the movant's evidence. Casso v. Brand, 776 S.W.2d 551, 556
(Tex. 1989). Although we assume that the assertions and allegations in the nonmovant's pleadings
are true, generally a party's own pleadings are not evidence. See Laidlaw Waste Sys. v. City of
Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).
If a trial court's order granting summary judgment does not specify the basis for the court's ruling, as
is the case here, the summary judgment will be affirmed if any of the theories advanced by the
movant is meritorious. Amtech Elevator Servs. Co. v. CSFB 1998-P1 Buffalo Speedway Office, 248
S.W.3d 373, 377 (Tex. App.-- Houston [1st Dist.] 2007, no pet.) (citing Carr v. Brasher, 776 S.W.2d
567, 569 (Tex. 1989)).
Rules for Reinstatement
Texas Rule of Disciplinary Procedure 11.02 governs the contents of a petition for reinstatement.
Tex. R. Disciplinary P. 11.02. Rule 11.02 includes thirteen requirements that the petition must meet;
however, the only provisions relevant to this appeal are 11.02(g) and 11.02(i). The former requires
the applicant to provide a "listing of the petitioner's occupations from the date of disbarment or
resignation, including . . . the dates and duration of all such relationships and employment." Id. at
11.02(g). The latter requires a disclosure of "all civil actions in which the petitioner was a party" since
disbarment or resignation. Id. at 11.02(i). Additionally, petitioners seeking reinstatement must publish
notice of this intent as a paid classified announcement in the Texas Bar Journal. Id. at 11.04.
Notice
Rule 11.04 requires a petitioner seeking reinstatement into the Bar to publish notice of this intent in
the Texas Bar Journal. Tex. R. Disciplinary P. 11.04. The Bar sought summary judgment claiming
Stephens never provided such notice. To prevail in a summary judgment, the movant must show that
(1) there is no genuine issue of material fact and (2) that it is entitled to judgment as a matter of law.
Nixon, 690 S.W.2d at 548-49; see Tex. R. Civ. P. 166a(c). All inferences and doubts are resolved in
favor of the nonmovant. Nixon, 690 S.W.2d at 548-49.
In its original motion for summary judgment, the Bar asserted that Stephens failed to provide notice
to the Texas Bar Journal. The Bar supported this contention with a business records affidavit from
the journal's managing editor. The affidavit stated that Stephens had not paid for notice as of
January 18, 2008. Business records affidavits are appropriate evidence to support a motion for
summary judgment. Tex. R. Civ. P. 166(f).
Once a movant has produced sufficient evidence to support its motion for summary judgment, the
nonmovant must produce evidence to dispute that evidence. Casso, 776 S.W.2d at 556. Appellant
produced only his own pleadings, which are not evidence. Laidlaw, 904 S.W.2d at 660. Stephens'
failure to produce evidence, other than his own pleadings, that he provided notice in the Texas Bar
Journal means that he failed to rebut the Bar's arguments that no genuine issue of material fact
exists as to whether he provided notice to the Texas Bar Journal.
When a court finds that no genuine issue of material fact exists, it must determine whether the
movant should prevail as a matter of law. Nixon, 690 S.W.2d at 548-49; see Tex. R. Civ. P. 166a(c).
Rule 11.04 states that "[t]he petitioner . . . shall publish notice [of intention to petition for
reinstatement] as a paid classified announcement in the Texas Bar Journal." Tex. R. Disciplinary P.
11.04. The use of the word "shall" imposes an affirmative duty on the petitioner to provide such
notice. See Tex. Gov't Code Ann. § 311.016 (Vernon Supp. 2008) (explaining that the use of "shall"
creates a duty). Stephens' failure to provide such notice means that the Bar prevails as a matter of
law.
Because the order granting summary judgment did not specify a basis for the trial court's ruling and
we find one of the grounds supporting the grant of summary judgment meritorious, we need not
consider the remaining grounds asserted by Stephens. Amtech Elevator, 248 S.W.3d at 377.
We overrule Stephen's sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Alcala, and Hanks.
1.The Bar responded to this, and Stephens responded to the Bar's response, but neither side
offered any new arguments or evidence.