Justice Willet's Dissent in
In re Caballero, No. 07-0484 (Tex. Dec. 19, 2008)(Majority Opinion by Green)(BODA attorney discipline,
disbarment or suspension from practice of law term during fully probated sentence)
I understand the Court’s desire to grant BODA flexibility, but my reading of the rules
and our pertinent precedent compels me to respectfully dissent.
BODA must disbar under Rule 8.05 if the attorney is sentenced to jail or to a
combination of jail and probation, and BODA must suspend under Rule 8.06 (up to the
length of the probated sentence) if the sentence is fully probated. Because Caballero’
s sentence was fully probated, I would hold that BODA was only authorized to
suspend his license.
IN THE MATTER OF ROLANDO CABALLERO
The Court affirms the judgment of disbarment.
Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Wainwright, Justice Brister, and Justice Johnson joined.
Justice Willett delivered a dissenting opinion, in which Justice Medina joined.
Willett Dissent in: In Re Rolando Caballero (Tex. 2008)
Argued April 2, 2008
Justice Willett, joined by Justice Medina, dissenting.
Like the Court, I would attempt to harmonize Rules 8.05 and 8.06 of the Rules of Disciplinary
Procedure and give meaning to each. However, the Court sees discretion where I see only
mandatory options for discipline. Because I believe the Court’s attempt to harmonize the relevant
rules and rulings strikes a discordant note, I respectfully dissent.
The parties do not dispute that the compulsory discipline rules apply. Rule 8.05, titled “Disbarment,”
provides that the Board of Disciplinary Appeals (BODA) “shall” disbar an attorney who is convicted
of, or has accepted probation for, an Intentional Crime. The use of “shall” makes the Rule mandatory
and “imposes a duty.”
The only exception mentioned in Rule 8.05 is Rule 8.06, titled “Suspension.” Rule 8.05 states that
the attorney “shall be disbarred unless” BODA, “under Rule 8.06, suspends his or her license to
practice law.” As we observed in Sanchez v. Board of Disciplinary Appeals, “Rule 8.05 mandates
disbarment for a final conviction . . . except when Rule 8.06 applies.”
Rule 8.06 sets out the exception by providing that if the attorney’s sentence is “fully probated”
(emphasis added), BODA shall suspend the attorney “during the term of probation.” We have so
observed: BODA “is required to disbar an attorney” under Rule 8.05 “who is convicted of an
intentional crime and whose sentence is not fully probated.” Like Rule 8.05, Rule 8.06 is
mandatory by its terms.
I would reconcile the rules, and honor the mandatory “shall” used in both, by holding that when
mandatory discipline is warranted, Rule 8.06 applies if the sentence is fully probated, and Rule 8.05
applies if the attorney’s sentence is less-than-fully probated. Which is to say, BODA must disbar
under Rule 8.05 if the attorney is sentenced to jail or to a combination of jail and probation, and
BODA must suspend under Rule 8.06 (up to the length of the probated sentence) if the sentence is
fully probated. Because Caballero’s sentence was fully probated, I would hold that BODA was only
authorized to suspend his license.
The plain language of the rules supports this result, and so does our prior precedent. In Sanchez, the
Court held that Rule 8.05 mandates disbarment “except when Rule 8.06 applies,” and it did “not
apply to Sanchez because his sentence, a fine of $500, was not probated.” Later that same year,
in In re Ament, we noted that the relevant disciplinary rules previously gave discretion to disbar an
attorney who received a fully probated sentence, but under Rule 8.06, “[t]he provision providing for
discretionary, additional punishment is omitted.” We described this omission as the “one, crucial”
change in the rule. Today the Court re-inserts that omitted discretion.
Seven years after Sanchez, we observed in In re Lock that the mandatory language of the two rules
should be applied according to the nature of the sentence without regards for details that would
ordinarily inform a discretionary review: “An attorney guilty of an intentional crime must be either
suspended or disbarred—depending solely on whether the attorney’s criminal sentence was
probated—without regard for any collateral matters, and without any consideration or inquiry into the
facts of the underlying criminal case.”
In that case we seemed to reject the view that BODA has discretion to either disbar or suspend a
lawyer regardless of whether the sentence was fully probated. The Court today would allow language
in Rule 8.05 concerning disbarment to confer discretion over suspension when the rule actually
governing suspension leaves no room for such discretion. The more natural reading is that Rule
8.05 requires disbarment “unless” Rule 8.06 applies, at which point suspension is required. This
construction comports with our analysis in Sanchez, Ament, and Lock and harmonizes the plain
language of both rules.
I understand the Court’s desire to grant BODA flexibility, but my reading of the rules and our
pertinent precedent compels me to respectfully dissent.
Don R. Willett
OPINION DELIVERED: December 19, 2008
 See Elledge v. Friberg-Cooper Water Supply Corp., 240 S.W.3d 869, 870-71 (Tex. 2007) (per curiam);
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).
 Tex. Gov’t Code § 311.016(2); In re Gen. Elec. Co., ___S.W.3d___,___ (Tex. 2008).
 877 S.W.2d 751, 751 (Tex. 1994).
 Rule 8.06 also applies where the attorney receives “probation through deferred adjudication.” Deferred
adjudication is imposed in lieu of further prosecution to a conviction that can be punished by a term of
incarceration, and hence is always “fully probated” in the sense that the defendant receives no jail time so
long as he complies with the terms of the deferred adjudication. See, e.g., Tex. Crim. Proc. Code art. 42.12,
§ 5 (providing for community supervision in lieu of further proceedings to adjudicate guilt under deferred
 In re Ament, 890 S.W.2d 39, 41 n.2 (Tex. 1994) (emphasis added).
 877 S.W.2d at 751-52.
 890 S.W.2d at 40-41 (emphasis in original).
 Id. at 41.
 54 S.W.3d 305, 306-07 (Tex. 2001) (emphasis added).
 The Court’s decision also leads to a strange gap in discipline. Ament held that the suspension period for
a fully probated sentence under Rule 8.06 is limited to the period of probation. 890 S.W.2d at 41. As the
Court expresses no interest in disturbing the holding of Ament, I take it to hold today that BODA can now
disbar an attorney receiving a short, fully probated sentence, such as the five-minute probated sentence at
issue in Ament, or else impose a suspension limited to the term of probation. Meanwhile, a suspension longer
than the term of probation, but nevertheless short of disbarment, is disallowed. I find this result strained and
unnecessary under the language of the relevant rules.