Osborne et al v. State of Texas et al

Filing 11

ORDER DENYING 7 Motion for Service by Marshal or Someone Specially Appointed; DENYING 8 Motion to Appoint Counsel. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JAMAR OSBORNE AND
MIKAL OSBORNE,
Plaintiffs,
v.
STATE OF TEXAS, TRAVIS COUNTY,
BOARD OF LAW EXAMINERS,
SUPREME COURT OF TEXAS, JULIA
E. VAUGHAN, AND BUCK FILES,
Defendants.

§
§
§
§
§
§
§
§
§
§

A-13-CV-528-LY

ORDER

Before the Court are Plaintiffs’ Motion for Service by Marshall [sic] or Someone Specially
Appointed (Dkt. No. 7) and Plaintiffs’ Motion for Appointment of Counsel (Dkt. No. 8). The coplaintiffs in this case, Jamar Osborne and Mikal Osborne, are brothers. The District Court referred
the above-motions to the undersigned Magistrate Judge for a determination pursuant to 28 U.S.C.
§636(b) and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the
Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate
Judges.
I. MOTION FOR SERVICE BY MARSHAL
Plaintiff Jamar Osborne (“Jamar”) alleges that he does not have the financial means to serve
the named defendants in the instant suit. Dkt. No. 7. Jamar asserts that he had previously filed a
motion for leave to proceed in forma pauperis along with a supporting financial affidavit and has
had no income since filing the in forma pauperis motion. Id. On August 6, 2013, Judge Lee Yeakel
entered an order, dismissing without prejudice Jamar’s Motion for Leave to Proceed in forma
pauperis because he had submitted the required $400.00 filing fee for this case. Dkt. No. 6.

After considering Jamar’s instant request, the Court will DENY his Motion for Service.
Other than Jamar’s claim of indigency, he has presented no evidence suggesting that he is unable to
serve the defendants in this case. Additionally, there is no pending motion to proceed in forma
pauperis before this Court. The previous motion has already been resolved and Jamar has not
submitted another motion for consideration. To the extent Jamar urges this Court to reconsider his
Motion for Leave to Proceed In Forma Pauperis (Dkt. No. 5), the Court notes that the financial
information contained therein is incomplete. Both Jamar and his co-plaintiff, Mikal Osborne, signed
the original complaint. Dkt. No. 1. Yet the financial affidavit attached to Jamar’s Motion for Leave
to Proceed In Forma Pauperis only contains information regarding his financial situation. Dkt. No.
5. It provides no information regarding Mikal Osborne’s financial status. Furthermore, as stated
previously, the required filing fee in this suit was paid in full. As such, there is simply no
information before this Court suggesting that Plaintiffs in this case are unable to serve their lawsuit
upon the named defendants. Because the Osbornes’ have not been found indigent, they are not
entitled to effectuation of service by the U.S. Marshals or any other individual. Accordingly, the
Motion for Service by U.S. Marshals or Appointed Individual (Dkt. No. 7) is DENIED.
II. MOTION FOR APPOINTMENT OF COUNSEL
The decision to appoint an attorney is within the broad discretion of the trial judge given the
particular facts of the case. Gonzalez v. Carlin, 907 F.2d 573, 579 (5th Cir. 1990). The following
three factors are generally balanced by the courts in determining whether to appoint an attorney: (1)
the party’s financial ability to retain private counsel, (2) the party’s own efforts to secure counsel,
and (3) the merits of the case. Id. at 580; Maxwell v. Kight, 974 F. Supp. 899, 902 n.2 (E.D. Tex.
1996). Courts have also considered a party’s ability under the circumstances of the case to present
2

the case without the assistance of an attorney. Poindexter v. FBI, 737 F.2d 1173, 1189 (D.C. Cir.
1984); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
In considering a motion for appointment of counsel, the court must also remain mindful of
the unfairness of imposing involuntary servitude upon a member of the bar when the likelihood of
success upon the claims appears slight. Tatum v. Cmty. Bank, 866 F. Supp. 988, 995 (E.D. Tex.
1994). Moreover, there are no federal funds allocated to the prosecution or defense of civil lawsuits.
For that reason, if the Court were to appoint an attorney, counsel would have to serve entirely
without compensation unless the party prevails and attorney’s fees are awarded. The court considers
all of these factors in exercising its discretion is resolving a request for appointed counsel in a civil
case.
A. Financial Ability to Retain Private Counsel
In demonstrating their financial ability to retain private counsel, Jamar Osborne and Mikal
Osborne (“the Osbornes”) are not required to establish substantial poverty. Reado v. Tex. Gen. Land
Office, 929 F.Supp. 1046, 1053 (E.D. Tex. 1996) (citing Ivey v. Bd. of Regents, 673 F.2d 266, 269
(9th Cir. 1982)). “There need only be insufficient assets and income to enable movant to afford an
attorney to investigate and file his claim.” Id. As noted in Part I, it is unclear precisely what
financial resources the Osbornes possess to pursue this lawsuit. The financial affidavit submitted
by Jamar only purports to outline his financial situation. See Dkt. No. 5. The Court has no
information regarding the financial status of Mikal Osborne (“Mikal”). Additionally, the filing fee
has been paid in this case. Aside from Jamar’s financial affidavit, the Court has no additional
information regarding the circumstances that make retaining a private attorney financially difficult.

3

Furthermore, the Osbornes’ have not presented any evidence of financial inability to retain private
counsel under a contingency fee arrangement. Accordingly, this factor does not weigh in their favor.
B. Efforts to Secure Counsel
To be eligible for appointed counsel, plaintiff must make “a reasonably diligent effort under
the circumstances to obtain counsel.” Lee v. United States Postal Service, 882 F. Supp. 589, 594
(E.D. Tex. 1995) (quoting Bradshaw v. Zoological Soc’y, 662 F.2d 1301, 1319 (9th Cir. 1981)).
Courts have suggested that a significant inquiry on this issue is whether the complainant has pursued
the possibility of a contingent fee arrangement in his efforts to locate an attorney. Lee, 882 F. Supp.
at 594. “If a plaintiff has made attempts to seek out a contingent fee arrangement, then there is a
stronger argument for finding this factor to favor the appointment of counsel.” Reado, 929 F.Supp.
at 1052.
According to his motion, Jamar states that he has posted three advertisements on Craigslist
soliciting legal services. Dkt. No. 8 at 1. Jamar also notes that he has contacted several law firms,
but has not received any response. Id. Additionally, it appears that Jamar has contacted Texas Rio
Grande Legal Aid, Inc., but was told he was ineligible for pro bono services as he is outside the
service area of the organization and is not an immigrant farmer. Id. Jamar also states that he has
contacted the pro bono section of the local lawyer referral service but has not been able to speak to
anyone. Id. at 2. However, it does not appear that Mikal has spoken with any attorneys or made any
effort to retain legal counsel for this case. Consequently, the Court finds that, taken together, the
Osbornes have not made a reasonably diligent effort to obtain counsel in this case.

4

C. Merits of the Case
The examination of the potential merits of the plaintiff’s case is extremely important,
“considering the unfairness of imposing service upon a member of the bar in a patently frivolous
case.” Lee, 882 F. Supp. at 594. “Examination of the merits sua sponte before the defendant has
been required to answer is akin to a frivolousness review of a general in forma pauperis proceeding.”
Id. Frivolous suits are those without an arguable basis in law or fact. Id. Thus, the duty to screen
for frivolousness includes a determination of whether the case is based on a recognized legal theory,
and to make an initial assessment of the plaintiff’s factual allegations in light of what plaintiff must
eventually prove at trial. Id. While the court may not construct arguments or legal theories for the
plaintiff, the complaint must be liberally construed when the plaintiff is proceeding pro se. Id.
Thus far, the Osbornes have presented little to support the majority of their claims in this
case. In his Complaint, Jamar alleges that he applied for admission to the Texas Bar in 2009 after
graduating from the University of Oklahoma Law School. Dkt. No. 1, ¶ 11. However, he failed to
attain the minimum passing score and was denied admission to the Texas Bar. Id. Jamar further
states that he registered to take the Texas Bar again in February, 2013, but later decided not to
proceed when an employment opportunity arose. Id. ¶ 12. The State Bar of Texas refused to refund
his application fee or apply his fee to a future exam. Id. ¶ 13. Jamar also alleges that he applied for
an attorney position with Travis County, but was denied employment because one of the job
requirements was a license to practice law in Texas. Id. ¶ 14.
In 2012, Mikal Osborne sought assistance from Jamar in a family law matter involving the
custody of Mikal’s daughter. Id. ¶ 15. However, Jamar was unable to assist his brother as he did
not have a license to practice in Texas. Id. Consequently, Mikal hired another lawyer, resulting in
5

alleged substantial overcharges in legal fees, even though Mikal preferred to be represented by
Jamar. Id. ¶ 16–17. The Osbornes assert that but for the requirements concerning the practice of law
in Texas, Mikal would not have been denied his right to be represented by the individual of his
choice and would not have been overcharged for legal services. Id. ¶ 17.
Construed broadly, Jamar does not appear to be alleging that he should be admitted to the
State Bar of Texas. Rather, he complains that the regulations imposed by the State Bar of Texas and
the Texas Bar Exam violate his and Mikal’s constitutional and statutory rights. In particular, the
Osbornes’ instant complaint brings a multitude of claims, including due process, freedom of
association, antitrust, regulatory taking, professional malpractice, civil rights, equal protection, first
amendment, and improper taking of property. Dkt. No. 1. Several of the claims allege violations
of Mikal’s constitutional rights stemming from Jamar’s inability to practice law in Texas without
a law license, such as due process, freedom of association, and regulatory taking. Others merely
allege that the state’s control over who is admitted to the Texas Bar, or the Texas Bar Exam itself,
violates statutory or constitutional laws, including the Osbornes’ antitrust claim and Jamar’s Title
VII, equal protection, and first amendment claims. Jamar also asserts that the manner in which the
Texas Bar Exam is graded is contrary to established legal principles and is a violation of his
substantive due process rights. The remaining claims assert state law claims, such as negligence in
failing to ensure access to legal services.
Whether applicants to a state bar are admitted is a matter for state regulation. See Bailey v.
Bd. of Law Exam’rs of State of Tex., 508 F.Supp. 106, 108 (W.D. Tex. 1980). “The only limitation
upon the state’s exclusive right to admit or deny admission to applicants must be based upon the
Constitution.” Id. Although a state may not exclude an individual from the practice of law for
6

reasons that violate the Due Process or Equal Protection clauses of the Fourteenth Amendment, “[a]
[s]tate can require high standards of qualification, such as good moral character or proficiency in its
law.” Schware v. Bd. of Bar Exam’rs of State of N.M., 353 U.S. 232, 239 (1957). Any qualification
requirements “must have a rational connection with the applicant’s fitness or capacity to practice
law.” Id.
The majority of the Osbornes’ claims criticize the process of obtaining a law license in Texas,
including the Texas Bar Exam. They assert that the exam is discriminatory and that it does not test
a prospective applicant’s ability to practice law. However, “[t]here is . . . no constitutional right to
practice law without passing an examination.” Bailey, 508 F.Supp. at 108 (citing Attwell v. Nichols,
608 F.2d 228, 230 (5th Cir. 1979)). As noted above, states can require high standards of
qualification for individuals seeking to practice law, including a proficiency in its laws, and are only
limited in their restrictions by the due process and equal protection clauses of the Fourteenth
Amendment. Schware, 353 U.S. at 238–39. Furthermore, it is recognized that requiring candidates
to pass the bar exam prior to admitting them to practice law is rationally related to the state’s
legitimate goal of assuring a competent bar. Bailey, 508 F.Supp. at 109. Therefore, unless the
Osbornes’ are able to demonstrate that the Texas Bar Exam infringes upon their due process or equal
protection rights, the merits of the Osbornes’ attacks upon the Texas Bar Exam as a requirement to
practice law in Texas are weak and weigh against appointment of counsel in this case.
To state a claim of discrimination under the Equal Protection Clause, the Osbornes’ “must
either allege that (a) a state actor intentionally discriminated against him because of membership in
a protected class or (b) he has been intentionally treated differently from others similarly situated and
that there is no rational basis for the difference in treatment.” Gibson v. Tex. Dep’t of Ins.–Div.
7

Worker’s Compensation, 700 F.3d 227, 238 (5th Cir. 2012) (internal quotations and citations
omitted). Here, Jamar does not allege that the Texas State Bar intentionally discriminated against
him based on his membership in a protected class. Rather, he merely asserts that the Texas Bar
Exam is an ineffective method to evaluate a candidate’s knowledge of Texas law. Complaint ¶¶
77–81. There is no allegation of intentional discrimination. Consequently, the Court finds that the
Osbornes have not stated a claim for violation of the Equal Protection Clause.
Nor have the Osbornes’ stated a due process claim. To state a claim for deprivation of due
process, the Osbornes’ must at least allege (1) the deprivation of a constitutionally protected interest
and (2) constitutionally inadequate procedures. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
538, 541 (1985).

In this case, the Osbornes’ have neither identified a deprivation of a

constitutionally-protected right nor have they alleged any constitutionally inadequate procedures.
First, as noted above, Jamar does not have a constitutional right to practice law without passing an
examination. Bailey, 508 F.Supp. at 108 (citing Attwell v. Nichols, 608 F.2d 228, 230 (5th Cir.
1979)). Additionally, Mikal does not have a constitutional right to be represented by an individual
who is not an attorney, even if that layperson is a family relative. United States v. Cooper, 493 F.2d
473, 474 (5th Cir. 1974) (per curiam). There is also no discernable claim in the Complaint that the
Osbornes’ were subjected to constitutionally-inadequate procedures. Therefore, the Osbornes’ have
failed to state a claim for deprivation of due process.
Related to his contentions against the Texas Bar Exam, Jamar also argues that there are
multiple other methods for evaluating the effectiveness of a prospective attorney aside from the
Texas Bar Exam. See Dkt. No. 1, ¶ 75. Yet “a state is not required to choose the least restrictive
qualifications, but need only choose such restrictions as are rationally related to the state’s goal of
8

ensuring a competent bar.” Bailey, 508 F.Supp. at 109 (citing Tyler v. Vickery, 517 F.2d 1089 (5th
Cir. 1975), cert. denied, 426 U.S. 940 (1976)). A bar examination tests the legal proficiency of bar
examinees and is rationally related to the legitimate goal of maintaining a competent bar. Bailey,
508 F.Supp. at 109. As such, administering an exam is a valid method for determining admission
to the Texas Bar and whether other methods exist for evaluating an individual’s ability to practice
law is irrelevant.
As to the Osbornes’ antitrust claims, the Court also finds those assertions to lack merit.
Jamar appears to assert that the Texas Bar violates the Sherman Act because it monopolizes the
practice of law in Texas. Complaint ¶¶ 43–52. Yet, as noted above, it has already been recognized
that states may regulate the practice of law in their jurisdictions, as long as those regulations do not
contravene the due process or equal protection clauses of the Fourteenth Amendment. Schware, 353
U.S at 239. Furthermore, to the extent Jamar is challenging the requirement that applicants for the
Texas Bar be required to pass the Texas Bar Exam prior to being admitted to practice law in Texas
as anti-competitive conduct, his claim also fails. When the supreme court of a state promulgates
rules governing the procedure for admission to the bar and retains sole authority over deciding which
applicants are admitted, such action is not subject to Sherman Act liability under the state action
doctrine of Parker v. Brown, 317 U.S. 341 (1943). See Hoover v. Ronwin, 466 U.S. 558, 573 (1984).
In this case, the Texas Supreme Court issues rules governing admittance to the bar and also
maintains sole authority over granting licenses to practice law in Texas. See TEX . GOV . CODE §§
82.021–82.022. Consequently, these actions are not subject to Sherman Act liability.1
1

In his Complaint, Jamar cites to the Supreme Court’s decision in Goldfarb v. Va. State Bar,
421 U.S. 773, 791 (1975), for the proposition that state bar associations are not exempt from antitrust
laws. Complaint ¶ 50. However, Goldfarb is easily distinguishable from the instant case. In
9

Although the Court has not conducted an in-depth analysis of all of the Osbornes’ claims,
the Court’s review thus far indicates that the merits of their claims are weak. Consequently, the
Court finds that this factor weighs against appointment of counsel in the instant case.
D.

Plaintiff’s Ability to Present His Case
As this case is in the beginning stages, there is limited information to allow this Court to

gauge the Osbornes’ ability to present their case, but what the Court has seen is favorable. Jamar
possesses a law degree. Moreover, the extensive complaint sets forth a myriad of constitutional and
statutory claims. Dkt. No. 1. The complaint demonstrates that Jamar’s legal training and writing
skills are sufficient to pursue his claims in the instant case without the Court’s appointment of
counsel. Accordingly, the Court finds that the Osborne’s are capable of adequately presenting the
instant case without the assistance of counsel.
E.

Summary
Considering the above factors, the Court finds that the Osbornes’ have failed to demonstrate

a genuine need for appointment of counsel at this time . In particular, the Osbornes have not

established that they are financially unable to retain an attorney nor that they have fully explored the
possibility of retaining an attorney on a contingent fee basis. Furthermore, the Court finds the merits

Goldfarb, the Supreme Court considered whether minimum fee schedules promulgated by the
Fairfax County Bar Association and enforced by the Virginia State Bar violated the Sherman Act.
Goldfarb, 421 U.S. at 775. The Supreme Court ultimately held that by imposing disciplinary actions
upon those who deviated from the published minimum fees, the Virginia State Bar had joined in
private anti-competitive activity and could not claim Sherman Act immunity for the enforcement of
minimum fee schedules. Id. at 791–92. However, the activity considered in Goldfarb had little, if
anything, to do with a state bar’s regulation regarding the admission of lawyers. Here, Jamar
challenges the process of obtaining a license to practice law in Texas, which governs who may obtain
a license to practice law in Texas. In fact, the Supreme Court in Goldfarb explicitly recognized the
compelling interest of a state to regulate its professions, including the legal profession. Id. at
792–93. As such, Jamar Osborne’s reliance upon Goldfarb is misplaced.
10

of the Osbornes’ claims to be weak. Therefore, the Court declines to appoint the Osbornes an
attorney and HEREBY DENIES the Osbornes’ Motion for Appointment of Counsel (Dkt. No. 8).
III. CONCLUSION
In accordance with the preceding analysis, the Court HEREBY DENIES Plaintiffs’ Motion
for Service by Marshall or Someone Specially Appointed (Dkt. No. 7) and Plaintiffs’ Motion for
Appointment of Counsel (Dkt. No. 8).
SIGNED this 7th day of October, 2013.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

11