SCOTT Supreme Court of Texas

					                                                   FILED
                                                   IN THE SUPREME COURT
                                                   OF TEXAS
                                                   12 March 26 P2:08
                                                    BLAKE. A. HAWTHORNE
                                                   CLERK
                  No. 12-0132


    IN THE SUPREME COURT OF TEXAS

              _________________

            SCOTT M. TIDWELL
         STATE BAR CARD 20020730
                Appellant,

                      V.

  COMMISSION FOR LAWYER DISCIPLINE
       OF THE STATE OF TEXAS
               Appellee,
          _________________


On Appeal from the Board of Disciplinary Appeals
              BODA No. 49518

              _________________

           BRIEF FOR APPELLANT

              _________________


                    Respectfully Submitted,

                    Denis Dennis
                    Kelly, Morgan, Dennis, Corzine & Hansen
                    4001 42nd. Ste. 200
                    Odessa, Tex. 79762
                    Telephone: (432) 367-7271
                    Facsimile: (432) 363-9121
                    ATTORNEYS FOR APPELLANT
                   IDENTITIES OF PARTIES AND COUNSEL




Appellant:                      Mr. Scott M. Tidwell

Counsel for Appellant           Denis Dennis
                                ddennis@kmdfirm.com
                                Kelly, Morgan, Dennis, Corzine & Hansen
                                4001 42nd. Ste. 200
                                Odessa, Tex. 79762
                                Telephone: (432) 367-7271
                                Facsimile: (432) 363-9121


Appellee:                       Commission for Lawyer Discipline
                                P.O. Box 12487
                                Austin, Texas 78711

Counsel for Appellee:           Cynthia Hamilton
                                Senior Appellate Counsel
                                Office of the Chief Disciplinary Counsel
                                State Bar of Texas
                                P.O. Box 12487
                                Austin, Texas 78711




                                   ii
                                                   TABLE OF CONTENTS
                                                                                                                                      Page


IDENTITIES OF PARTIES AND COUNSEL ................................................................................ ii

TABLE OF CONTENTS………………………………………………………………………iii-iv

INDEX OF AUTHORITIES……………………………………………………………………….v

STATEMENT OF THE CASE ....................................................................................................... vi

ISSUE PRESENTED…………………………………………………………………………...- 1 -

STATEMENT OF JURISDICTION ............................................................................................ - 2 -

ISSUE PRESENTED ................................................................................................................... - 2 -

STATEMENT OF THE FACTS .................................................................................................. - 2 -

SUMMARY OF THE ARGUMENT ........................................................................................... - 2 -

ARGUMENT AND AUTHORITY ............................................................................................. - 3 -

  I.      Standard of Review ........................................................................................................... - 3 -

  II.     The definition of crimes involving moral turpitude is not clear-cut and often requires
          case-by-case analysis…………………………………………………………………….- 3 -

  III. BODA may not inquire into the facts and circumstances underlying the conviction in a
       compulsory discipline proceeding. .................................................................................... - 6 -

  IV. BODA erred in holding as a matter of law that Misuse of Official Information, as defined
      in Texas Penal Code § 39.06, is a crime involving moral turpitude per se. ...................... - 7 -

       A. Whether Misuse of Official Information under Texas Penal Code § 39.06 is a crime
          involving moral turpitude is an issue of first impression in Texas. .................................. - 7 -

       B. Expert testimony would have assisted BODA in determining whether Misuse of Official
          Information can be a crime involving moral turpitude...................................................... - 8 -

  V. Because conviction for misuse of official information is not a crime involving moral
     turpitude per se, compulsory discipline was not proper. ................................................... - 9 -

       A. The elements of misuse of official information do not squarely fit within the definition
          of a “serious crime” warranting compulsory discipline. ................................................... - 9 -
                                                   iii
  B. Holding Misuse of Official Information a crime involving moral turpitude per se, which
     triggers compulsory discipline, will have a chilling effect on prosecutors in Texas. ..... - 10 -

  C. Prosecutor’s conduct in prosecuting a case is insulated after grand jury has determined
     the probable cause to indict. ............................................................................................ - 11 -


PRAYER……………………………………………………………………………………… - 12 -

CERTIFICATE OF SERVICE…………………………………………………………………- 12 -

APPENDIX………………………………………………………………………………………….




                                                               iv
                                              INDEX OF AUTHORITIES

Cases

Duncan v. Bd. of Disciplinary Appeals, 898 S.W.2d 759 (Tex. 1995)…- 3 -, - 5 -, - 8 -, - 9 -, - 10 -

In re Humphreys, 880 S.W.2d 402 (Tex. 1994), cert. denied, 513 U.S. 964 (1994) ................... - 3 -

In re Lock, 54 S.W.3d 305 (Tex. 2001)…………………………………- 4 -, - 5 -, - 6 -, - 8 -, - 11 -

Tate v. State Bar, 920 S.W.2d 727 (Tex. App.—Houston [1st Dist.] 1996), reh’g overruled ….- 5 -

Turton v. State Bar of Tex., 775 S.W.2d 712 (Tex. App.—San Antonio 1989, writ denied)…… - 4 -

Statutes

TEX. PENAL CODE ANN. § 39.06 (West) ............................................................................ - 7 -, - 8 -

Rules

TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.09 cmt. 2 .................................................. - 11 -

TEX. RULES DISCIPLINARY P. R. 1.05....................................................................................... - 11 -

TEX. RULES DISCIPLINARY P. R. 1.06T. ..................................................................................... - 3 -

TEX. RULES DISCIPLINARY P. R. 1.06Z ............................................................................. - 4 -, - 5 -

TEX. RULES DISCIPLINARY P. R. 8.01 ......................................................................................... - 6 -

TEX. RULES DISCIPLINARY P. R. 8.03 ......................................................................................... - 3 -

TEX. RULES DISCIPLINARY P. R. 8.04 ......................................................................................... - 6 -

TEX. RULES DISCIPLINARY P. R. 8.05 ......................................................................................... - 6 -

TEX. RULES DISCIPLINARY P. R. 8.06 ......................................................................................... - 6 -




                                                                v
                         STATEMENT OF THE CASE



Nature of the case:             This is a compulsory discipline action.         The
                                Commission filed suit before the Board of
                                Disciplinary Appeals alleging that offenses of which
                                Mr. Tidwell was convicted were intentional and
                                serious crimes. (CR 1-4).




Course of proceedings:          The Commission abandoned prosecution for
                                convictions of Retaliation and Official Oppression as
                                intentional and serious crimes and proceeded with
                                Misuse of Official Information conviction. (RR 5).
                                Appellee answered the suit, alleging that Misuse of
                                Official information is not a serious crime involving
                                moral turpitude for purposes of attorney discipline
                                and attempted to offer expert testimony on the issue
                                but was denied. (RR 8-10). Counsel then argued
                                whether Misuse of Official Information should be
                                classified as a crime of moral turpitude without
                                reference to any underlying facts or circumstances.
                                (RR 10-33).


BODA disposition:               On January 27, 2012, the Board of Disciplinary
                                Appeals entered an Interlocutory Order of Suspension
                                Regarding Scott Tidwell, holding as a matter of law
                                that Misuse of Official Information and Retaliation
                                are intentional and serious crimes as defined by Texas
                                Rules of Disciplinary Procedure 1.06(T) and 1.06(Z),
                                respectively, despite the Commission’s abandonment
                                of Retaliation as a basis for compulsory discipline.
                                (CR 117).




                                   vi
                                     ISSUE PRESENTED

       Whether Misuse of Official Information is an intentional crime involving moral turpitude

per se which subjects an attorney to compulsory discipline based on classification of the crime

without consideration of any underlying facts?




                                                 -1-
                             STATEMENT OF JURISDICTION

The Honorable Court has jurisdiction pursuant to Texas Rules of Disciplinary Procedure, Rule

8.08.

                                     ISSUE PRESENTED

        Whether Misuse of Official Information is an intentional crime involving moral turpitude

per se which subjects an attorney to compulsory discipline based on classification of the crime

without consideration of any underlying facts?

                               STATEMENT OF THE FACTS

        Appellant was convicted by a Jury of the 109th Judicial District Court of Winkler County,

Texas, of two counts of Misuse of Official Information and two counts each of Retaliation and

Official Oppression. The Commission for Lawyer Discipline waived any complaint regarding

Official Oppression and Retaliation and opted to use only the conviction for Misuse of Official

Information as the basis of the disciplinary complaint. (RR 5:9-13). The inquiry at BODA

focused on whether the elements of the crime met the definition of a “serious crime,” which was

required to subject Appellant to the Compulsory Discipline process. (RR 4:10-12). Appellant

argued that compulsory discipline was not appropriate because the jury could have found

Appellant guilty based either on intent to harm or intent to defraud, and it is unclear from the

record which element was found by the jury. Appellant has perfected an appeal of the criminal

case on the underlying convictions to the Eighth Court of Appeals in El Paso. (RR 7:15-20).

                             SUMMARY OF THE ARGUMENT

        The Board of Disciplinary Appeals erred in holding as a matter of law that the crime of

Misuse of Official Information is an Intentional and Serious Crime involving moral turpitude per

se. The elements “intent to harm or defraud” were indicted and submitted in the disjunctive,

                                              -2-
making it impossible to know exactly what the jury relied upon, for purposes of a Compulsory

Discipline prosecution. To be a serious crime, as defined by the Rules, the elements must

involve moral turpitude. Based on the indictment and the conviction alone, the elements,

submitted disjunctively, do not meet the definition of moral turpitude and compulsory discipline

was improper. There is no precedent holding the crime of Misuse of Official Information a

crime of moral turpitude for impeachment purposes or for attorney discipline. The standard

grievance process should have been used because BODA may not consider anything other than

the elements alone in a compulsory discipline prosecution.

                             ARGUMENT AND AUTHORITY

I.     Standard of Review

       This Court reviews legal conclusions by the Board of Disciplinary Appeals de novo.

Duncan v. Bd. of Disciplinary Appeals, 898 S.W.2d 759, 761 (Tex. 1995); In re Humphreys, 880

S.W.2d 402, 404 (Tex.1994), cert. denied, 513 U.S. 964 (1994). Whether a particular crime

involves moral turpitude is a question of law. Duncan, 898 S.W.2d at 761 (Tex. 1995).

II.    The definition of crimes involving moral turpitude is not clear-cut and often
       requires case-by-case analysis.

       This action was brought against Appellant as a Compulsory Disciplinary Action. TEX.

RULES DISCIPLINARY P. R. 8.03, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A-1

(West 2005). Pursuant to the Rules, the petition must allege and the Commission must prove

adjudication of guilt of an “Intentional Crime” as that term is defined in the rules. TEX. RULES

DISCIPLINARY P. R. 8.03. Intentional Crime is defined as “(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.”        TEX. RULES DISCIPLINARY P. R. 1.06T.

Because the indictment did not involve misapplication of money or property, the definition of
                                           -3-
“Serious Crime” must be examined. Serious Crime is defined as “barratry; any 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.” TEX. RULES DISCIPLINARY P. R. 1.06Z.

None of the definitions of the Serious Crime are related to the elements of Misuse of Official

Information; so by default, it must be a felony involving moral turpitude for compulsory

discipline to apply. The Commission for Lawyer Discipline chose to prove that misuse of

official information is a crime of moral turpitude per se by choosing compulsory discipline in lieu

of the standard grievance process.

       a crime of moral turpitude “must involve dishonesty, fraud, deceit, misrepresentation, or

deliberate violence, or must reflect adversely on an attorney’s honesty, trustworthiness, or fitness

as an attorney.” In re Lock, 54 S.W.3d 305, 308 (Tex. 2001). Moral turpitude is a “nebulous

concept,” not susceptible of a bright-line test or a comprehensive definition. See Turton v. State

Bar of Tex., 775 S.W.2d 712, 717 (Tex. App.—San Antonio 1989, writ denied).

       Certain crimes, such as those involving intentional dishonesty for personal gain or fraud,

involve moral turpitude on its face. Turton, 775 S.W.2d at 717. Conversely, “the commission

of some crimes, standing alone, does not implicate an attorney’s fitness to practice law.” Id.

The key words are “standing alone.” In those cases, “moral turpitude cannot be imputed from

the conviction alone” and a tribunal must inquire into the circumstances surrounding the

commission of the crime. Id. The Turton court refused to characterize an aggravated assault

with serious bodily injury as involving moral turpitude per se for purposes of mandatory

disbarment. Id. Rather, the determination of whether a lawyer’s criminal conviction involved

moral turpitude required the trial court to examine the totality of the circumstances, including any

                                               -4-
mitigating facts. Id.

       The same intentional crime can be classed as either one involving moral turpitude or one

not involving moral turpitude, depending on the circumstances surrounding its commission. For

example, the crime of failing to stop and render assistance can be a crime of moral turpitude,

reflecting adversely on the attorney’s moral fitness to practice law. Tate v. State Bar, 920

S.W.2d 727, 729 (Tex. App.—Houston [1st Dist.] 1996), reh’g overruled. However, if an

attorney, after being involved in a serious accident, made the conscious choice to proceed to the

hospital with his wife who had a medical emergency rather than stop to render aid to victims of

the accident, such mitigating circumstances would be relevant in determining whether the

attorney acted with moral turpitude. Id. The Tate court held that failure to stop and render

assistance is not a crime involving moral turpitude per se. Id. However, under the specific

circumstances of that case, the court held that the attorney acted with moral turpitude and

mandatory disbarment was proper. Id. at 730. Therefore, when a crime is not one of moral

turpitude per se, the trier of fact should consider the circumstances surrounding the commission

of the crime, which cannot be done in a compulsory discipline hearing. See id. (citing Duncan,

898 S.W.2d at 760, 762).

       In this case, BODA held that misuse of official information is a serious crime as defined

by Texas Rules of Disciplinary Procedure, Rule 1.06Z. Because misuse of official information

by definition does not involve barratry, theft, embezzlement, or misappropriation of money or

property, it must involve moral turpitude to fit the definition of a serious crime. Compulsory

discipline for an intentional crime is limited to the examination of “the record of conviction, the

criminal sentence imposed, and the factual determinations that the attorney is licensed to practice

law in Texas and is the party adjudged guilty.” In re Lock, 54 S.W.3d at 306 (citing TEX. RULES

                                               -5-
DISCIPLINARY P. R. 8.04, 8.05, 8.06). This Court, as was BODA, is limited to looking at the

elements of the crime to see if they implicate the definition of moral turpitude. In re Lock, 54

S.W.3d at 308.        Here, it is impossible to know under which element—harm or

defraud—Appellant was convicted. These elements, standing alone, do not implicate moral

turpitude. An examination of the underlying circumstances is necessary.

III.   BODA may not inquire into the facts and circumstances underlying the conviction
       in a compulsory discipline proceeding.

       An attorney licensed in Texas is subject to discipline after a criminal conviction. TEX.

RULES DISCIPLINARY P. R. 8.01.         The question is whether the attorney is subject to the

Compulsory Discipline Process or to the Standard Grievance Process through the local committee

or a district court. See In re Lock, 54 S.W.3d at 306. The compulsory discipline process

“admits no discretion” and does not allow an examination of the underlying facts concerning the

elements of the criminal case. Id. at 306-07. In Lock, this Court stated that it was prohibited,

under the compulsory discipline rules, from examining the circumstances surrounding the

attorney’s possession of a controlled substance to determine if she were unfit to practice law. Id.

at 311. Therefore, this Court could not conclude that possession of a controlled substance is a

crime of moral turpitude per se. Id. Consequently, the attorney in that case was not subject to

compulsory discipline; instead, the standard grievance procedures were the appropriate means of

reviewing and sanctioning her misconduct. Id.

       Similarly, in the instant case, the Court cannot examine the circumstances underlying the

conviction of misuse of official information in the context of compulsory discipline. Therefore,

the standard grievance process is the proper place for determining whether Appellant’s conviction

qualifies as a crime of moral turpitude.


                                               -6-
IV.    BODA erred in holding as a matter of law that Misuse of Official Information, as
       defined in Texas Penal Code § 39.06, is a crime involving moral turpitude per se.

       A.      Whether Misuse of Official Information under Texas Penal Code § 39.06 is a
               crime involving moral turpitude is an issue of first impression in Texas.

       The issue before this Court has no precedent, and the Commission agreed with this fact.

(RR 15:13-15). Appellant finds no authority in Texas that has ever interpreted the crime of

Misuse of Official Information under Texas Penal Code § 39.06 to meet the definition of a

“serious crime” implicating the elements of a crime of moral turpitude. The statute requires

proof of one of the three forms of intent: (1) to obtain a benefit, (2) to harm another, or (3) to

defraud another. The statute provides:

       (b) A public servant commits an offense if with intent to obtain a benefit or with
       intent to harm or defraud another, he discloses or uses information for a
       nongovernmental purpose that:
       (1) he has access to by means of his office or employment; and
       (2) has not been made public.

TEX. PENAL CODE ANN. § 39.06 (West). The jury can convict a public official based on the

showing of any one of the three.

       In the instant case, the jury was charged in the disjunctive—it could convict Appellant if it

found that Appellant intended to harm or defraud the victim. Both parties discussed this

distinction at length at the BODA hearing. (RR 11:24-12:23). Counsel for the Commission

admitted that the distinction was arguable. (RR 19:16-20). The Vice Chairman of BODA hit

the nail on the head by stating: “And so we can’t have any idea of knowing just by looking at the

judgment which one the jury thought or if both?” (RR 21:16-18). BODA Panel Member

Selman indicated that the standard grievance process might have been necessary. (See RR

29:24-31:1). There is no way for anyone to tell whether the jury in the criminal case used the

“harm” element or the “defraud” element to support the conviction. To discern possible intent

                                               -7-
requires an examination of the facts of the individual crime, an inquiry that BODA cannot

perform pursuant to compulsory discipline. In re Lock, 54 S.W.3d at 307-08 (citing Duncan,

898 S.W.2d at 762).


        B.      Expert testimony would have assisted BODA in determining whether Misuse
                of Official Information can be a crime involving moral turpitude.

        Whether the crime is a crime involving moral turpitude is a question of law. Duncan,

898 S.W.2d at 761. In Duncan, there was no precedent for whether misprision of a felony was a

crime of moral turpitude per se. Id. BODA allowed expert testimony regarding the issue of

whether that crime involved moral turpitude. Id. at 761.

        In this case, Commission for Lawyer Discipline “strenuously” objected to providing any

guidance to BODA regarding whether the elements of Misuse of Official Information qualified as

moral turpitude according to Texas law. (RR 10:9-12). The Vice Chair of BODA sustained the

objection over the proffer of evidence that Appellant brought a board certified criminal lawyer to

testify as to whether the crime for which the Commission was seeking compulsory discipline

involved moral turpitude as a class of crime. (RR 10:2-16). As set forth above, BODA inquired

about how they were to know exactly which element the jury relied upon for the conviction. The

Board clearly did not know, and could not know, based on the law governing compulsory

discipline. The Commission for Lawyer Discipline placed BODA in this position by filing the

petition for compulsory discipline rather than opting for a procedure in which the underlying facts

could help determine whether misuse of official information qualified as a moral turpitude crime

in this case.

        Because it is impossible to know under which element the jury convicted Appellant

pursuant to § 39.06, the offense of misuse of official information in its entirety cannot be

                                               -8-
characterized as one involving moral turpitude. Consequently, the determination of whether

Appellant’s conviction involved moral turpitude would require the examination of the underlying

criminal proceeding and the circumstances surrounding the commission of the crime. However,

this is exactly what this Court prohibited BODA from doing in a compulsory hearing. Duncan,

898 S.W.2d at 760.


V.     Because conviction for misuse of official information is not a crime involving moral
       turpitude per se, compulsory discipline was not proper.

       A.      The elements of misuse of official information do not squarely fit within the
               definition of a “serious crime” warranting compulsory discipline.

       This Court has held that when a particular crime does not involve moral turpitude per se,

the only disciplinary action available is the one based on the underlying facts of the attorney’s

conduct, not compulsory discipline. Duncan, 898 S.W.2d at 760. In Duncan, the Board of

Disciplinary Appeals suspended an attorney from the practice of law following a compulsory

discipline hearing.   Id. at 760.   The attorney’s underlying conviction was the felony of

misprision of felony. Id. The Court stated that BODA could not determine whether the

attorney committed an intentional crime without reviewing the underlying criminal proceeding.

Id. at 762. However, “[a]llowing such a review would impair, or in some cases destroy, the

summary nature of the compulsory discipline procedure.” Id.        Because misprision of felony

does not involve moral turpitude per se, this Court held that BODA was precluded from

reviewing the facts in the record to determine whether the attorney engaged in a crime involving

moral turpitude and, therefore, compulsory discipline was improper. Id.

       In Duncan, this Court held that the following elements of misprision of a felony do not

involve moral turpitude per se: 1) The principal committed and completed the felony alleged; 2)

The defendant had full knowledge of that fact; 3) The defendant failed to notify the authorities;
                                             -9-
and 4) The defendant took an affirmative step to conceal the crime. Duncan, 898 S.W.2d at 761

(emphasis added). The Court held that without looking at the underlying criminal proceeding,

BODA could not determine whether the element involved an intentional crime of moral turpitude.

Id.

       The critical elements of the crime of misuse of official information—intent to harm or

intent to defraud—are analogous to “full knowledge,” “fail to notify,” and “affirmative step to

conceal the crime.” Yet, this Court had held that misprision of felony does not involve moral

turpitude per se, without examination of the underlying facts. Similarly, the Court should hold

that misuse of official information does not involve moral turpitude per se. Appellant in this

case should be afforded the same deference this Court has provided other Texas attorneys.


       B.      Holding Misuse of Official Information a crime involving moral turpitude
               per se, which triggers compulsory discipline, will have a chilling effect on
               prosecutors in Texas.

       The Board inquired of the Commission why this matter was filed as compulsory discipline

rather than standard grievance, considering that one process is not exclusive of the other. (RR

30:21-31:1). The answer from the Commission was, “It’s an expedited process. It carries a

harsher sanction, usually.” (RR 31:6-7). The reason given by the Commission is not a valid

reason to ask BODA to classify a crime, for which there is no precedent, as a crime involving

moral turpitude per se. The effect of BODA’s holding is that a prosecutor or a lawyer serving in

a public office, convicted of any crime involving intent to harm or defraud, such as misuse of

official information, could be disbarred without consideration of the underlying circumstances.

       In the instant case, BODA has no idea which element was determinative because the

elements were submitted in the disjunctive. BODA erred in finding as a matter of law that

misuse of official information is a serious crime involving moral turpitude. When the inquiry for
                                                - 10 -
the appropriate sanction depends on the underlying facts, the attorney should be subjected to the

standard grievance process—the process “where the underlying facts and any collateral

circumstances can yield the appropriate sanction”. In re Lock, 54 S.W.3d at 312.


       C.      Prosecutor’s conduct in prosecuting a case is insulated after grand jury has
               determined the probable cause to indict.

       The Texas Rules of Disciplinary Procedure, under which Appellant was prosecuted, state:

“Nothing in these rules is to be construed, explicitly or implicitly, to amend or repeal in any way

the Texas Disciplinary Rules of Professional Conduct. TEX. RULES DISCIPLINARY P. R. 1.05.

Appellant pled and argued as an affirmative defense that the Texas Rules of Professional Conduct

insulate his conduct for purposes of attorney discipline because, under Rule 3.09 dealing with

special responsibilities of a prosecutor, conduct is insulated when a prosecutor moves forward in

a criminal prosecution after a grand jury has determined probable cause to indict.           TEX.

DISCIPLINARY RULES PROF’L CONDUCT R. 3.09 cmt. 2; see RR 13:12-14:4.

       This defense to a claim of misconduct also needs examination pursuant to the standard

grievance process as opposed to compulsory discipline. Appellant was convicted as a public

servant, i.e., a prosecutor. The underlying facts of this case deal with misuse of official

information in connection with a prosecution that Appellant had conducted. In the context of

attorney discipline, the Rules of Professional Conduct are certainly relevant to actions or

inactions as they relate to disbarment. An examination of the rules in their application to the

facts and elements of a crime can only be performed through the standard grievance process, as

opposed to compulsory discipline. Without examination of the underlying facts, Rules of

Professional Conduct, and elements of the crime, every prosecutor who uses official information

in the prosecution of indicted crimes will be subject to disbarment by compulsory discipline, if

                                              - 11 -
convicted of misusing the information after the prosecution has terminated. A “per se” rule

allows for no discretion and no examination of underlying facts that may mitigate against the

moral turpitude definition.

                                             PRAYER

       WHEREFORE PREMISES CONSIDERED the Appellant would respectfully pray that,

upon an examination of the entire record in this case, this Court rule that Appellant is not properly

subject to the Compulsory Discipline Process, and that a factual inquiry is appropriate under the

Standard Grievance Process.

                                               Respectfully submitted,

                                               /S/ Denis Dennis
                                               Denis Dennis
                                               Kelly, Morgan, Dennis, Corzine & Hansen
                                               4001 42nd. Ste. 200
                                               Odessa, Tex. 79762
                                               Telephone: (432) 367-7271
                                               Facsimile: (432) 363-9121

                                               ATTORNEYS FOR APPELLANT


                                 CERTIFICATE OF SERVICE

        I, Denis Dennis, certify that pursuant to Rule 9.5(b) of the Texas Rules of Appellate
Procedure, that I served a true and correct copy of the Brief for Appellee upon Cynthia Hamilton,
by electronic service.



                                                /S/ Denis Dennis
                                               Denis Dennis




                                               - 12 -
        No. 12-0132

             IN THE

    SUPREME COURT OF TEXAS

         AUSTIN, TEXAS
        _________________

        SCOTT M. TIDWELL
     STATE BAR CARD 20020730
            Appellant,

               V.

COMMISSION FOR LAWYER DISCIPLINE
     OF THE STATE OF TEXAS
             Appellee,
        _________________


           APPENDIX

        _________________



              Denis Dennis
              Kelly, Morgan, Dennis, Corzine & Hansen
              4001 42nd. Ste. 200
              Odessa, Tex. 79762
              Telephone: (432) 367-7271
              Facsimile: (432) 363-9121

              ATTORNEYS FOR APPELLANT
                     BEFORE THE BOARD OF DISCIPLINARY APPEALS
                                  APPOINTED BY
                           THE SUPREME COURT OF TEXAS

IN THE MATTER OF                               §
SCOTT M. TIDWELL                               §            CAUSE NO. 49518
STATE BAR CARD NO. 20020730                    §

                          INTERLOCUTORY ORDER OF SUSPENSION

        On the 27th day of January 2012, the above-styled and numbered compulsory disciplinary

action was called for hearing before the Board of Disciplinary Appeals. Petitioner, Commission for

Lawyer Discipline of the State Bar of Texas, appeared by attorney and announced ready.

Respondent, Scott M. Tidwell, appeared in person and by attorney and announced ready. All issues

of fact as well as all questions of law were submitted to the Board of Disciplinary Appeals for

determination. Having considered the pleadings on file, having received evidence, and having heard

the argument of counsel, the Board of Disciplinary Appeals is of the opinion that Petitioner is

entitled to entry of the following findings and orders:

        Findings of Fact. The Board of Disciplinary Appeals finds that:

        (1)      Respondent, Scott M. Tidwell, whose State Bar Card number is 20020730, is
                 licensed by the Supreme Court of Texas to practice law and currently
                 authorized to practice law in the State of Texas.

        (2)      On or about January 13, 2011, Respondent was charged by Grand Jury
                 Indictment with Counts One and Two - Misuse of Official Information in
                 violation of Texas Penal Code § 39.06(b); Counts Three and Four -

Interlocutory Order of Suspension - attorney
Scott M. Tidwell
Pagel of6
                 Retaliation in violation ofTexas Penal Code§ 36.06(a)(l)(A); and Counts
                 Five and Six - Official Oppression in violation of Texas Penal Code §
                 39.03(a)(l) in Case No. 5191, styled The State o.fTexas v. Scott Tidwell, in
                 the 109th Judicial District Court of Winkler County, Texas.

        (3)      On or about October 13, 2011, a Judgment of Conviction by Jury was entered
                 in Case No. 5191 Count One, styled The State of Texas v. Scott Tidwell, in
                 the 109th District Court of Winkler County, Texas, wherein Respondent was
                 found guilty of Misuse of Official Information, a Third Degree Felony, and
                 was committed into the custody of the Institutional Division of the Texas
                 Department of Criminal Justice to be imprisoned for a total term of ten ( 10)
                 years. The Court suspended the confinement and placed Respondent on
                 community supervision for ten ( 10) years, ordered him to pay a fine of$4,000
                 and court costs of$305. The Court ordered this sentence to run concurrently
                 with Counts Two, Three and Four.

        (4)      On or about October 13,2011, a Judgment of Conviction by Jury was entered
                 in Case No. 5191 Count Two, styled The State o.fTexas v. Scott Tidwell, in
                 the 109th District Court of Winkler County, Texas, wherein Respondent was
                 found guilty of Misuse of Official Information, a Third Degree Felony, and
                 was committed into the custody of the Institutional Division of the Texas
                 Department of Criminal Justice to be imprisoned for a total term often (10)
                 years. The Court suspended the confinement and placed Respondent on
                 community supervision for ten (1 0) years. The Court ordered this sentence to
                 run concurrently with Counts One, Three and Four.

        (5)      On or about October 13,2011, a Judgment of Conviction by Jury was entered
                 in Case No. 5191 Count Three, styled The State o.fTexas v. Scott Tidwell, in
                 the 109th District Court of Winkler County, Texas, wherein Respondent was
                 found guilty of Retaliation, a Third Degree Felony, and was committed into
                 the custody of the Institutional Division of the Texas Department of Criminal
                 Justice to be imprisoned for a total term of ten (1 0) years. The Court
                 suspended the confinement and placed Respondent on community
                 supervision for ten (1 0) years. The Court ordered this sentence to run
                 concurrently with Counts One, Two and Four.

        (6)      On or about October 13, 2011, a Judgment of Conviction by Jury was entered
                 in Case No. 5191 Count Four, styled The State o.fTexas v. Scott Tidwell, in
                 the 109th District Court of Winkler County, Texas, wherein Respondent was
                 found guilty of Retaliation, a Third Degree Felony, and was committed into
                 the custody of the Institutional Division of the Texas Department of Criminal
                 Justice to be imprisoned for a total term of ten (1 0) years. The Court

Interlocutory Order of Suspension - attorney
Scott M. Tidwell
Page 2 of6
                 suspended the confinement and placed Respondent on community
                 supervision for ten (I 0) years. The Court ordered this sentence to run
                 concurrently with Counts One, Two and Three.

        (7)      Respondent, Scott M. Tidwell, is the same person as the Scott Tidwell who is
                 the subject of the Tidwell criminal case described above.

        (8)      Respondent has appealed the criminal convictions.

        Conclusions of Law. Based upon the foregoing findings of facts the Board of Disciplinary

Appeals makes the following conclusions of law:

        (I)      This Board has jurisdiction to hear and determine this matter. TEX. R.
                 DISCIPLINARY P. 7.08(0) ("TRDP").

        (2)      Respondent, Scott M. Tidwell, having been convicted of Misuse of Official
                 Information, has been convicted of an Intentional Crime as defined by TRDP
                 I.06(T). Said crime is also a Serious Crime as defined by TRDP I.06(Z).

        (3)      Respondent, Scott M. Tidwell, having been convicted of Retaliation, has
                 been convicted of an Intentional Crime as defined by TRDP 1.06(T). Said
                 crime is also a Serious Crime as defined by TRDP I.06(Z).

        (4)      Having been found guilty and convicted of an Intentional and Serious Crime
                 and having appealed such convictions, Respondent, Scott M. Tidwell, should
                 have his license to practice law in Texas suspended during the appeal ofhis
                 criminal convictions. TRDP 8.04.

        (5)      The Board retains jurisdiction to enter a final judgment in this matter when
                 the criminal appeal is final.

        It is, accordingly, ORDERED, ADJUDGED, and DECREED that Respondent, Scott M.

Tidwell, State Bar Card No. 20020730, is hereby SUSPENDED from the practice of law in the State

ofTexas effective immediately upon entry of this order and continuing hereafter until further order

of this Board.

        It is further ORDERED, ADJUDGED and DECREED that Respondent, Scott M. Tidwell,


Interlocutory Order of Suspension - attorney
Scott M. Tidwell
Page 3 of6
during said suspension is hereby prohibited, effective immediately, from practicing law in Texas,

holding himself out as an attorney at law, performing any legal service for others, accepting any fee

directly or indirectly for legal services not completed before the date of this order, appearing as

counsel in any proceeding in any Texas court or before any Texas administrative body, or holding

himself out to others or using his name or bar card number, in any manner, in conjunction with the

words "attorney," "counselor," or "lawyer."

        It is further ORDERED that Respondent, Scott M. Tidwell, shall notify in writing, no later

than thirty (30) days from the date of this Order, each and every justice of the peace, judge,

magistrate, and chiefjustice of each and every court in which Respondent, Scott M. Tidwell, has any

legal matter pending, if any, of his suspension, of the style and cause number of the pending

matter( s), and of the name, address, and telephone number of the client(s) Respondent is representing

in that court. Respondent is also ORDERED to mail copies of all such notifications to the Statewide

Compliance Monitor, Office of the Chief Disciplinary Counsel, State BarofTexas, P.O. Box 12487,

Capitol Station, Austin, Texas 78711.

        It is further ORDERED that Respondent, Scott M. Tidwell, shall immediately notify each of

his current clients and opposing counsel, if any, in writing, of his suspension. In addition to such

notification, Respondent is ORDERED to return all files, papers, unearned fees paid in advance, and

all other monies and properties which are in his possession but which belong to current or former

clients with active cases pending, if any, to those respective clients or former clients with active

cases pending within thirty (30) days after the date of this Order. Respondent is further ORDERED

to file with the Statewide Compliance Monitor, Office of the Chief Disciplinary Counsel, State Bar


Interlocutory Order of Suspension - attorney
Scott M. Tidwell
Page 4 of6
of Texas, P.O. Box 12487, Capitol Station, Austin, Texas 78711, within the same thirty (30) days,

an affidavit stating either (a) that all current clients and opposing counsel have been notified of his

suspension and that all files, papers, unearned fees paid in advance, and all other monies and

properties belonging to clients and former clients with active cases pending have been returned as

ordered herein or (b) that Respondent has no current clients, files, or papers, and that any unearned

fees paid in advance or other monies or properties belonging to clients have previously been returned

to the appropriate client. If Respondent is unable to return any file, papers, money or other property

to any client or former client with active cases pending, Respondent's affidavit shall state with

particularity the efforts made by Respondent with respect to each particular client and the cause of

his inability to return to said client any file, paper, money or other property. Respondent is also

ORDERED to mail a copy of all notification letters to the Statewide Compliance Monitor, Office of

the ChiefDisciplinary Counsel, State Bar ofTexas, P .0. Box 12487, Capitol Station, Austin, Texas

78711.

         It is further ORDERED that Respondent, Scott M. Tidwell, imtnediately surrender his Texas

law license and permanent State Bar Card to the Statewide Compliance Monitor, Office of the Chief

Disciplinary, State Bar of Texas, P.O. Box 12487, Capitol Station, Austin, Texas 78711, for

transmittal to the Clerk of the Supreme Court ofTexas.

         It is further ORDERED that this Order is interlocutory and that the Board retains jurisdiction

to enter a final judgment when the appeal of the criminal conviction is final. TRDP 8.05; In the

Matter ofMercier, 242 SW 3d 46 (Tex. 2007).

         It is further ORDERED that Respondent shall promptly notify the Board and the State Bar of


Interlocutory Order of Suspension - attorney
Scott M. Tidwell
Page 5 of6
Texas Chi ef Disciplinaty Counsel w hen the appeal of the crimi nal conviction is final.

        It is further O RDERED that the C hief Disciplinary Counsel of the State Bar of Texas shall

mo ni tor the status of the appeal of the crim inal convictio n o n at least a quarterly basis and pro mptly

fil e an appro priate moti on for entry affinal judgm ent with the Board w hen the appeal of the criminal

convicti on is final.

        Signed thi s                  day o f January 20 12.




Board Chair W. Clark Lea recused




Interlocutory Order of Suspension - attorney
Scott M. Tidwell
Page 6 o!"6

				
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