Summary
holding that the Board must establish a present chemical dependency to justify finding a continuing lack of fitness where past addictions are at issue
Summary of this case from Board of Law Examiners of Texas v. CoulsonOpinion
No. 03-97-00720-CV.
November 13, 1998.
Appeal from the District Court, Travis County, 250th Judicial District, F. Scott McCown, J.
Lora A. Pickar, Plano, for Appellant.
Dan Morales, Attorney General, Quincy Quinlan, Assistant Attorney General, Austin, for Appellee.
Before Justices POWERS, ABOUSSIE and KIDD.
Appellant, Walter G. Unglaub, III, appeals an order of the trial court upholding the order of the Board of Law Examiners of the State of Texas (the "Board") denying appellant regular licensure, revoking his previous probationary license, and issuing a new probationary license subject to additional conditions. In nine points of error appellant directs this Court's attention to the Board's application of the term "present chemical dependency," the procedure governing the Board's redetermination of moral character and fitness, and the authority under which the Board attaches conditions to probationary licenses. Though troubled by some aspects of the probationary licensing procedure brought to light by appellant, we will affirm the order of the trial court.
BACKGROUND
Appellant first appeared before the Board in 1991 prior to his sitting for the Texas Bar examination. The Board made a finding of present chemical dependency at that time. The Board recommended appellant be allowed to sit for the bar examination and, upon passing, to practice law under a temporary license (the "1991 license"). This temporary license was subsequently issued, subject to several conditions. Among these conditions was the requirement that appellant remain sober.
In July of 1993, appellant came again before the Board for a hearing (the "1993 hearing") regarding his temporary license. The Board found that appellant had suffered two relapses during the prior two years, though the last episode had occurred sixteen months prior to the 1993 hearing. The Board found that these relapses constituted evidence of appellant's present chemical dependency, and recommended that appellant be issued a probationary license (the "1993 license") for a period of two years. Appellant's temporary license was revoked, and a probationary license to practice law was issued subject to additional conditions.
The 1993 order of the Board included the following conditions:
1. that Applicant shall remain abstinent from all alcohol and other mind altering drugs . . .;
2. that Applicant shall comply with any requirements of the Lawyers' Assistance Program to which the Board shall refer him and shall be subject to the supervision of an attorney monitor acceptable to the Board . . .;
3. that Applicant shall work to maintain his sobriety with an Alcoholics Anonymous sponsor, and, unless exceptions are approved by his attorney monitor, attend and actively participate in at least five AA meetings per week, and document such attendance with an attendance log that he will provide on a weekly basis to his attorney monitor;
4. that Applicant shall attend attorney support group meetings one time per week . . . and document. Exceptions must be approved by his attorney monitor;
5. that Applicant shall attend AA meetings as required and continue to make a bona fide effort to work actively all of the steps of the AA program under the supervision of his AA sponsor;
6. that Applicant shall be subject to random alcohol/drug screens at the frequency determined by his monitor . . .;
7. that Applicant shall not engage in any other conduct that evidences a lack of good moral character or fitness;
8. that Applicant shall file a written report every six months on a questionnaire to be furnished by the Board that addresses his faithfulness in meeting the conditions established herein and other matters relating to his moral character and fitness;
9. that Applicant shall reside continuously in Texas during the period of his probationary license, unless good cause shown, the Board waives this requirement;
10. that Applicant shall undergo an evaluation from a substance abuse treatment facility . . . within a period that is between 60 and 30 days prior to the expiration of his probationary license;
11. that Applicant's probationary license may be revoked at any time upon recommendation of the Board if, after a hearing, it is determined that he has violated a condition of such license;
12. that between 60 and 30 days prior to the expiration of his probationary license, Applicant shall apply for a renewal of his probationary license, or for a regular license to practice law, which application shall include evidence satisfactory to the Board that the conditions of his probationary license have been met; that the Board shall not recommend to the Supreme Court that Applicant be granted a regular license to practice law until the Board redetermines his moral character and fitness at that time A positive redetermination must include a finding that Applicant has successfully completed treatment, has been free from chemical dependency for the preceding two years, and has met all of the other conditions of his probationary license; and
13. that Applicant shall inform the Board of any change in his address and telephone number, by certified mail, return receipt requested, within 10 days of any such change.
Prior to the expiration of his 1993 license, and in accordance with the Board's application procedure, appellant applied for a regular license to practice law in the fall of 1995. The Board notified appellant that a hearing would be held on January 11, 1996 (the "1996 hearing"). In the 1996 hearing the Board sought to examine: (1) whether appellant presently suffered from chemical dependency; (2) whether appellant's failure to abide by one or more of the conditions placed on his 1993 license indicated he lacked the good moral character and fitness required for regular admission to the Texas Bar; and (3) whether appellant's probationary license should be revoked due to his failure to abide by one or more of its conditions. After the 1996 hearing, the Board issued an order once again finding that appellant "suffers from chemical dependency as defined by Rule I(a)(5) of the Texas Government Code." The Board further found that two specific instances of appellant's behavior — his failure to make regular payments on his student loans and his alleged violations of the Texas Disciplinary Rules of Professional Conduct regarding advertising — constituted evidence of a lack of trustworthiness which directly affected his character and fitness to practice law. Finally, the Board found that this behavior, coupled with appellant's failure to document on a weekly basis his attendance at AA meetings and attorney support group meetings, warranted revocation of his probationary license due to a failure to abide by the conditions of his 1993 license. The Board recommended that regular licensure of appellant be denied, that his 1993 probationary license be revoked, and that a new probationary license (the "1996 license") be issued subject to additional conditions. Appellant brought an appeal of the Board's order in Travis County District Court. The district court found substantial evidence in the administrative record supporting the Board's order, and affirmed the order. Appellant appeals from the trial court's order upholding the Board's decision.
The 1996 license included the conditions previously listed on the 1993 license as well as the following additional conditions (numbered as occurring on the license):
1. Applicant shall commit no offense against the laws of this state, any other state, or the United States;
2. Applicant shall work faithfully at suitable employment as far as possible
3. Applicant shall conduct himself in such a way so as to avoid, and not be subject to disciplinary action for, the breach of any regulation, rule, or statute governing any profession in which he may be engaged;
5. Applicant shall make a good faith effort to reduce his student loan debts during the term of his probationary license and to keep all other debts in a current status;
6. Applicant shall provide the Board, by May 1, 1996, with an income and expense statement and a detailed plan for making both regular payments on his student loan debts liquidating any other past due debts, and keeping all other debts in a current status.
Furthermore, the 1996 license stated that "revocation based on Applicant's failure to abide by the conditions of this order shall conclusively establish on his part a lack of trustworthiness in carrying out responsibilities, making it likely that he would injure a client, obstruct the administration of justice, or violate the disciplinary rules of professional conduct."
SUBSTANTIAL EVIDENCE REVIEW
When the Board makes a negative character and fitness determination, an applicant is entitled to judicial review of the Board's decision. See Tex.R. Governing Bar Admission 15(i); see also board of Law Examiners v. Allen, 908 S.W.2d 319, 321 (Tex.App.-Austin 1995, no writ). The reviewing court may affirm or remand the matter to the Board depending on whether the decision is "reasonably supported by substantial evidence." Tex.R. Governing Bar Admission 15(i)(5). In conducting a substantial-evidence review, we must first determine whether the evidence as a whole is such that reasonable minds could have reached the conclusion the agency must have reached in order to take the disputed action. Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert denied, 490 U.S. 1080, 109 S.Ct. 2100, 104 L.Ed.2d 662 (1989); Texas Health Facilities Comm'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 453 (Tex. 1984). We may not substitute our judgment for that of the agency and may consider only the record on which the agency based its decision. Sizemore, 759 S.W.2d at 116. The appealing party bears the burden of showing a lack of substantial evidence. Charter Medical, 665 S.W.2d at 453. The appealing party cannot meet this burden merely by showing that the evidence preponderates against the agency decision. Id. at 452. If substantial evidence would support either affirmative or negative findings, we must uphold the agency decision and resolve any conflicts in favor of the agency decision. Auto Convoy Co. v. Railroad Comm'n, 507 S.W.2d 718, 722 (Tex. 1974).
DISCUSSION
The Board of Law Examiners
The Texas Supreme Court maintains the exclusive authority to issue licenses to applicants seeking admission to the State Bar of Texas. Tex. Gov't Code Ann. § 82.021 (West 1998). The Board, however, acting pursuant to the authority of the supreme court, supervises bar admissions and thereby plays a key role in maintaining the integrity and character of the Texas Bar. See Board of Law Examiners v. Stevens, 868 S.W.2d 773, 776 (Tex. 1994). The supreme court vests the Board with considerable discretion in evaluating applicants based upon the promulgated admission standards. See id. Bar admission affirmatively requires "good moral character" and "fitness" to practice law. Id.; see also Tex.R. Governing Bar Admission 4(a). It is the Board's duty to evaluate each applicant's present moral character and fitness before making a recommendation to the supreme court regarding licensure. See Tex. Gov't. Code Ann. § 82.004 (West 1998).
Prior to 1991, the Board had authority to recommend only regular licenses; an applicant either passed the bar and possessed the requisite good moral character and fitness to practice law, or the applicant failed one or more of these necessary standards and could not be licensed. In 1991, the Legislature made extensive changes to the enabling statutes of the Board, allowing the Board to recommend probationary licenses for those applicants suffering from present chemical dependency. Act of June 15, 1991, 72d Leg., R.S., ch. 576, § 6, 1991 Tex. Gen. Laws 2057-60. Since 1991, the Board's enabling statutes provide that the Board may not deny a person a probationary license to practice law solely because that person suffers from a chemical dependency. Tex. Gov't Code Ann. § 82.038(d)(1) (West 1998); see also Tex.R. Governing Bar Admission 16(b). Upon issuance of a probationary license, the Board must specify conditions designed to protect the public from the potential harm the person might cause. See Tex. Gov't Code Ann. § 82.038(e) (West 1998); see also Tex.R. Governing Bar Admission 16(c). Thus, the Board must walk a fine line between the Legislature's intent to provide a sensitive method for dealing with the difficult problem of chemical dependency in the profession and the need to protect members of the public from attorneys without the capacity to provide them with competent service.
The statute states that conditions of a probationary license may include, but are not limited to, one or more of the following:
(1) prohibiting the person from using alcohol or controlled substances;
(2) treatment for chemical dependency;
(3) supervision of the person's work by a licensed attorney;
(4) submission to periodic drug testing;
(5) periodic reporting by the person to the board; or
(6) suspension, for a portion of the probationary period, of an activity for which a license to practice law is required.
Tex. Gov't Code Ann. § 82.038(e) (West 1998).
Present Chemical Dependency
In making a fitness determination, the Board seeks to exclude from the practice of law any person having a mental or emotional illness or condition which would be likely to prevent the person from carrying out duties to clients, courts, or the profession. Tex.R. Governing Bar Admission 4(c). The fitness required is a present fitness, and prior mental or emotional illnesses or conditions are relevant only so far as they indicate the existence of a present lack of fitness. Id.; see also Allen, 908 S.W.2d at 322. Thus, when the Board makes a redetermination of a previously chemically dependent probationary licensee's fitness to practice law, the Board must establish a present chemical dependency to justify finding a continued lack of fitness on that basis.
Chemical dependency is defined by statute and by Board rule as "(A) the abuse of alcohol or a controlled substance; (B) a pathological use of alcohol or a controlled substance that chronically impairs the applicant's ability to competently provide legal advice or services; or (C) a physiological or physical dependence on alcohol or a controlled substance." Tex. Gov't Code Ann. § 82.038(i) (West 1998); Tex.R. Governing Bar Admission 1(a)(5).
Evidence in the administrative record of the 1996 hearing demonstrates appellant's long history of alcohol abuse. He began attending AA meetings in 1986, five years before his 1991 hearing before the Board. The 1993 hearing established that appellant had relapsed twice during the time period of his 1991 temporary license. However, the administrative record of the 1996 hearing also demonstrates almost four years of sobriety prior to appellant's application for regular licensure. The record also reflects active involvement in structured treatment programs — both AA and attorney support group meetings. Appellant's mandatory evaluation from a substance abuse treatment facility includes statements from the evaluator that appellant's addiction severity index rating was a "1" which indicated, according to the evaluator, "no problem, no treatment necessary," and was the lowest score available on the rating scale.
The terms of appellant's 1993 probationary license required him to undergo an evaluation from a substance abuse treatment facility before application for a regular license, or for renewal of his probationary license.
The chemical dependency evaluation also included findings that appellant's pattern between 1986 and 1993 had been to maintain sobriety for approximately a year and a half followed by hospitalized detoxification or treatment. However, at the time of the evaluation, appellant's last reported treatment for alcohol dependency was in 1992, almost four years prior to the 1996 hearing.
The Board cites this Court's decision in Allen for the proposition that the Board must look at the evidence in each individual situation to determine chemical dependency. Allen, 908 S.W.2d at 322. The Board contends that a case-by-case analysis coupled with the broad discretion given the Board in evaluating applicants creates the context whereby appellant may be found presently chemically dependent. See id. In Allen, this Court reversed the district court and affirmed an order of the Board finding that Allen was presently chemically dependent. Id. at 323. Although Allen had a history of alcoholism and alcohol-related arrests and problems, he had been sober seventeen months prior to his licensing hearing before the Board. Id. Nevertheless, the Board found him presently chemically dependent and issued him only a probationary license. Id. at 320. In reviewing the Board's order, the district court remanded the matter to the Board and ordered the Board to recommend a regular license for Allen. Id. This Court reversed the district court, refusing to set the precedent that seventeen months was an adequate period of sobriety under any circumstance to eliminate the possibility that an applicant remained chemically dependent. Id. at 323. We find it noteworthy, however, that our opinion in Allen reflects that Allen was not involved in a regular structured program designed to combat his tendency toward alcoholism.
The holding in Allen supported the Board's discretion in determining present chemical dependency. The Board's discretion, however, is not limitless. In comparing Allen with the instant case, several distinctions arise. The first, and most obvious, is the length of sobriety prior to the licensing hearing; approximately forty-five months in the instant case compared to seventeen months in Allen. However, just as important, in Allen the applicant was not involved in any type of structured treatment program, while here, appellant attended multiple AA meetings every week, attended attorney support group meetings regularly, and worked under the direct supervision of an attorney monitor.
Appellant contends that substantial evidence does not exist in the record to support the Board's finding of present chemical dependency. We agree. The Board points to two areas in the administrative record to justify its finding that appellant was presently chemically dependent: (1) that he has been active in AA since 1986; and (2) that the chemical dependency evaluation noted a past chemical dependency problem and present medically supervised treatment for anxiety. This Court is troubled by the Board's interpretation of the term "present chemical dependency." We find it hard to imagine how anyone could overcome the stigma of chemical dependency under the Board's concept of present chemical dependency. Many experts would view appellant's involvement in AA as evidence that appellant has worked to overcome chemical dependency rather than evidence of a continuing problem. Furthermore, the Board places appellant in an impossible catch-22 situation: the Board lists involvement in AA as a condition of appellant's probationary license and yet attempts to use appellant's compliance with that condition as evidence of a present chemical dependency. The Board's own rules state that a past condition can only be relevant in a fitness determination to the extent it indicates a present lack of fitness. See Tex.R. Governing Bar Admission 4(c). Yet, the Board attempts to list the mere existence of past chemical dependency as substantial evidence of a present problem.
The Board's appellate brief attempts to justify the finding of present chemical dependency with the following statements: "Unglaub is presently chemically dependent. Unglaub has been active in AA since 1986. He testified that, absent his continued participation in AA, he would not be before the Board seeking to continue his practice of law. These facts alone support a finding of chemical dependence. . . . The Chemical Dependency Evaluation is evidence of chemical dependency presently under control due to social intervention and treatment. It is not evidence of no chemical dependency."
The Board's findings of fact and conclusions of law are even more vague and indefinite. The Board states: "Applicant suffers from chemical dependency as defined by Rule I(a)(5) of the Texas Government Code as evidenced by, among other things, his testimony and treatment history, although he has made progress in addressing his dependency."
The only evidence the Board can muster of present chemical dependency is an assertion in the chemical dependency evaluation that appellant suffers from anxiety, which can be a contributing factor in chemical dependency. However, the mere existence of anxiety hardly proves a present chemical dependency. We find that the length of appellant's sobriety prior to his 1996 hearing, his continued involvement in AA and other structured treatment efforts, and the "no problem, no treatment necessary" comment from his chemical dependency evaluation far outweigh any evidence of present chemical dependency demonstrated by appellant's present anxiety level. This record fails to reflect substantial evidence establishing that appellant is presently chemically dependent. We sustain appellant's point of error.
The Board's Redetermination of Moral Character
The Board must make a redetermination of an applicant's moral character and fitness at the expiration of an applicant's probationary license before making a recommendation to the supreme court regarding regular licensure. Tex. Gov't Code Ann. § 82.038(f) (West 1998). The Board made moral character and fitness an explicit condition of appellant's 1993 license in requiring that appellant "not engage in any other conduct that evidences a lack of good moral character and fitness." In the 1996 hearing, the Board found that two specific acts of appellant evidenced a lack of good moral character; namely that appellant failed to adequately repay his student loans and that a series of business cards and stationery he used in Arkansas violated the Texas Disciplinary Rules of Professional Conduct regarding advertising. See Tex. Disciplinary R. Prof. Conduct 7.04 (State Bar Rules art. X, § 9).
At the time of the 1996 hearing, appellant owed approximately $42,000 in guaranteed student loans. Appellant acknowledged that three of his four loans were in default at the time of the hearing. Appellant testified to recent attempts to consolidate or make other arrangements to remove the loans from default, but acknowledged payment of only approximately $700 towards these debts over the two-year period following the issuance of his 1993 probationary license. The Board cites this failure to make regular payments as evidence that appellant willfully chose not to fulfill his legal obligations, and thus lacked good moral character. Appellant cites financial inability to pay as the reason behind his default status.
The Board additionally points to appellant's difficulties with the Arkansas Bar regarding his business cards as further evidence of appellant's lack of good moral character. Appellant attempted to develop a practice in federal immigration law in both Texas and Arkansas during the period of his 1993 probationary license. Appellant did not need an Arkansas state law license to practice federal law in an Arkansas federal court. See Fed.R.App.P. 46; see also Zambrano v. City of Tustin, 885 F.2d 1473, 1483 (9th Cir. 1989). The Texas Disciplinary Rules of Professional Conduct, however, require disclosure of the jurisdictional limits of an attorney not licensed to practice in the jurisdiction where an office is located. Tex. Disciplinary R. Prof. Conduct 7.04. The record reflects several attempts by appellant to cure any alleged violations of Texas and Arkansas disclosure requirements through alterations in the disclosures made on his business cards. Appellant argues that the record is devoid of any evidence of appellant's intent to mislead, and that his attempted remediation cuts against any such conclusion. The Board argues that the Texas Disciplinary Rules of Professional Conduct do not require a showing of intent to prove a violation of the advertising guidelines, and that appellant should be held strictly liable.
We will decide this case on other grounds, and thus need not make a determination whether the Board's finding of a lack of moral character due to these alleged infractions is supported by substantial evidence. We will, however, take this opportunity to highlight some problems in the redetermination procedure as practiced by the Board and brought to light by appellant's contentions.
The Texas Supreme Court has recognized the difficulty inherent in assessing "good moral character" to practice law. Stevens, 868 S.W.2d at 776. The United States Supreme Court has warned, and the Texas Supreme Court has adopted its language, that good moral character is a "vague qualification, which is easily adapted to fit personal views and predilections, and can be a dangerous instrument for arbitrary and discriminatory denial of the light to practice law." Konigsberg v. State Bar of Cal., 353 U.S. 252, 263, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957); Stevens, 868 S.W.2d at 776. Possibly in anticipation of this potential for arbitrary and discriminatory findings of moral character by the Board, the statute conferring authorization upon the Board to conduct investigations also attempts to circumscribe this power of the Board to make such determinations:
The Board may not recommend denial of a license and the supreme court may not deny a license to an applicant because of a deficiency in the applicant's moral character or fitness unless . . . the Board finds a clear and rational connection between a character trait of the applicant and the likelihood that the applicant would injure a client or obstruct the administration of justice if the applicant were to practice law. . . .
Tex. Gov't Code Ann. § 82.028(c) (West 1998); see also Stevens, 868 S.W.2d at 776.
The Board has the authority to make determinations of an applicant's moral character and fitness on three occasions: (1) when an applicant files a Declaration of Intent to Study Law; (2) when an applicant files an application requesting to take the Texas Bar Examination; and (3) when a chemically dependent, probationary licensee applies for a regular license or another probationary license. See Tex. Gov't Code Ann. § 82.030(a), .038(f) (West 1998). Furthermore, when making a redetermination of a probationary licensee's moral character and fitness, the Board has the obligation to examine the applicant's conduct over the previous probationary period because the State Bar's jurisdiction over attorneys begins only after a regular license to practice law in Texas has been issued. See Tex.R. Governing Bar Admission p. iii. We are troubled, however, when the Board, as in the instant case, takes the position that an applicant's alleged violation of the Texas Disciplinary Rules of Professional Conduct equates automatically with a lack of good moral character and fitness. In such a circumstance, the Board is placed in the posture of not only having to supervise probation, but also to act as a de facto grievance committee for probationary licensees. The Board, however, fails to provide the procedural protections and range of sanctions given regular licensees in the grievance process.
In making a redetermination of a probationary applicant's moral character, the Board sits as prosecutor, judge, and jury. In appellant's case, the Board, or one of its representatives, created the conditions under which appellant could practice law, prosecuted him for the alleged violation of one or more of those conditions, determined that he violated the terms of those conditions, and essentially meted out punishment in the form of its recommendation of denial of regular licensure. This process perpetuates itself through the Board's revocation of previous probationary licenses and issuance of new probationary licenses subject to more onerous conditions.
When a complaint is filed against a regularly licensed attorney under the jurisdiction of the State Bar of Texas, that complaint is referred to a panel of the appropriate district grievance committee for a determination of "just cause." Tex.R. Disciplinary P. 2.11. Committee members must consist of one public member for every two attorneys, and must be chosen randomly by the chair of the committee. Tex.R. Disciplinary P. 2.02, .07. Committee members on the panel may be disqualified under the same rules which apply to district judges. Tex.R. Disciplinary P. 2.06. Each side may present evidence. Tex.R. Disciplinary P. 2.11. If all on the panel fail to find just cause, the complaint is dismissed; if at least one panel member, but less than a majority, vote for just cause, the complainant can opt for a de novo review by a second panel. Tex.R. Disciplinary P. 2.12. Should a majority of the second panel also fail to find just cause, the complaint is dismissed. Id. Should a majority of the panel find just cause, the panel can negotiate any sanction with the respondent short of disbarment, including private reprimand, public reprimand, probated suspension, or suspension. Tex.R. Disciplinary P. 2.13. Should the respondent fail to consent to a negotiated sanction, the process moves to either an evidentiary hearing of the grievance committee or to a de novo review by a district court, at the election of the respondent. Tex.R. Disciplinary P. 2.14.
In comparing the two procedures, several notable distinctions arise. Unlike the grievance process reviewing regularly licensed attorneys, the Board has no public members on its panel. Furthermore, the range of sanctions available under the State Bar's grievance process varies widely. The single sanction available to the Board for a transgression by a probationary licensee, no matter how trivial, is denial of a regular license; the equivalent of disbarment. Thus, whereas appellant's alleged violations of the advertising restrictions might yield a private or public reprimand under the State Bar's grievance procedure, appellant received the death penalty by the Board. Finally, and perhaps most significantly, the grievance process, at the election of the respondent, provides for de novo review by a district court of the agency's determination. In the instant case, the Board must meet only the minimum standard of substantial evidence to support its determination. A reviewing court may not substitute its judgment for the Board's, and the Board's decision must be upheld even where the supporting evidence is less than a preponderance. See Sizemore, 759 S.W.2d at 116; see also Charter Medical, 665 S.W.2d at 453.
It can be argued that attorneys under the jurisdiction of the State Bar deserve greater protection because their regular licenses represent vested rights to practice their profession. The argument continues that probationary licensees possess only limited rights, and have a continuing need for Board supervision. This position has merit and needs to be examined by those entities charged with oversight of the process. We seek merely to highlight the problems presented by appellant's situation and note that they are difficult of solution. Today, we need not attempt to resolve the problems presented, as the Board's order may be affirmed solely on the grounds that appellant admittedly violated some of the conditions of his 1993 license.
Attendance and Documentation Conditions of 1993 License
Conditions three and four of appellant's 1993 license required appellant to attend five AA meetings per week, to attend attorney support group meetings once per week, and to document his attendance by providing his attorney monitor with weekly attendance logs. Although appellant testified at the hearing that he attended these meetings regularly, it is undisputed that appellant failed to document his attendance on a regular basis. Furthermore, although appellant's attorney monitor stated that he would have granted appellant an exception for weekly attendance at attorney support group meetings due to the time appellant spent in Arkansas, appellant failed to request this of him.
It bears repeating that, under substantial evidence review, this Court may not substitute its judgment for that of the agency, and must uphold the agency decision if the evidence in the record can possibly support that decision. See Charter Medical, 665 S.W.2d at 453; see also Auto Convoy, 507 S.W.2d at 722. Unfortunately for appellant, the record clearly shows non-compliance with some of the conditions of his 1993 license. While there could be substantial debate as to the overall significance of the conditions violated by appellant, the authority under which the Board placed those conditions on appellant's 1993 license is not at issue in this appeal. We have expressed concern in the past whether certain conditions placed by the Board on probationary licenses comply with Texas Government Code § 82.038 or with Rule 16(c) of the Rules Governing Admission to the Bar of Texas. See Allen, 908 S.W.2d at 322-323. We continue to maintain this concern. However, appellant never challenged the conditions of his 1993 probationary license, and we cannot revisit them on this appeal. Therefore, appellant's admitted violations of some of the 1993 conditions alone must constitute sufficient grounds for the Board's order revoking appellant's 1993 license. The Board has express authority to terminate a probationary license upon a finding that a condition of probation imposed by the Board has been violated. See Tex. Gov't Code Ann. § 82.038(h) (West 1998); see also Tex.R. Governing Bar Admission 16(g)(2)(B). The language of the statute and that of the rule authorizing revocation was incorporated into the 1993 license itself: "that Applicant's probationary license may be revoked at any time upon recommendation of the Board, if, after a hearing, it is determined that he has violated a condition of such license." The 1993 license further mirrored statutory language in stating:
Appellant urges this Court to examine the authority under which the Board placed additional and more onerous conditions on appellant's 1996 probationary license. We need not address this point, however, because the Texas Supreme Court has acted to revoke appellant's 1996 probationary license. On September 19, 1997 the Board held a hearing, not attended by appellant, which recommended revocation of appellant's 1996 probationary license. The supreme court so ordered, and appellant failed to appeal.
This Court finds especially troubling the inclusion of "catch-all" conditions on appellant's 1993 and 1996 probationary licenses. Examples include "that applicant shall not engage in any other conduct that evidences a lack of good moral character or fitness;" and "that applicant shall commit no offense against the laws of this state, any other state, or the United States."
the Board shall not recommend to the Supreme Court that Applicant be granted a regular license to practice law until the Board redetermines his moral character and fitness at that time. A positive redetermination must include a finding that Applicant has been free from chemical dependency for the preceding two years, and has met all of the other conditions of his probationary license.
(Emphasis added); see Tex. Gov't Code Ann. § 82.038(f) (West 1998).
Appellant's situation under a probationary license resembles criminal probation in that the Board has discretion to refuse to recommend appellant for regular licensure and to revoke his probationary license upon a finding that any condition, no matter how inconsequential, has been violated. Because appellant clearly violated the requirements that he document on a weekly basis his attendance at AA meetings and attorney support group meetings, substantial evidence exists in the record to support the Board's finding that appellant violated the terms of his 1993 license. Thus, the Board had the authority to refuse appellant his regular license, and to revoke his 1993 probationary license. Accordingly, we overrule appellant's remaining points of error.
CONCLUSION
Because substantial evidence exists in the record supporting the Board's actions, we affirm the order of the trial court.