Cantu v. Commission of Lawyer Discipline et al

Filing 16

ORDER GRANTING 10 Motion to Dismiss. Signed by Judge Xavier Rodriguez. (aej)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
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Plaintiff,
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v.
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COMMISSION FOR LAWYER
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DISCIPLINE and STATE BAR OF TEXAS, '
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Defendants.
MARK CANTU,

Civil Action No. SA-17-CV-160-XR

ORDER
On this date, the Court considered Plaintiff Mark Cantu’s Verified Application for
Temporary Injunction and Defendants’ Motion to Dismiss (docket no. 10). After careful
consideration, the motion to dismiss is GRANTED.
BACKGROUND
This case arises out of disciplinary action taken against Plaintiff Mark Cantu by the State
Bar of Texas. Cantu, an attorney for 34 years, filed for bankruptcy. A non-dischargeability
complaint was filed in his bankruptcy proceedings, and after a trial in the Bankruptcy Court for
the Southern District of Texas, Judge Marvin Isgur denied discharge of Cantu’s bankruptcy on
February 17, 2011. Judge Isgur’s 72-page opinion was forwarded to the State Bar of Texas,
which instituted disciplinary action against Cantu in 2012. This action culminated in a jury trial
in the 398th Judicial District Court for Hidalgo County, in which the jury found in favor of the
Commission for Lawyer Discipline and against Cantu. Pursuant to Texas Rules of Disciplinary
Procedure 3.09 and 3.10, the state trial court determined the appropriate sanction and entered a
judgment of disbarment against Cantu on April 11, 2016.

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Judge Valenzuela issued fact findings and conclusions of law on June 10, 2016. The fact
findings cited other instances of misconduct by Cantu during the pre-trial proceedings, in 1998,
2000, 2001, and in 2015. In her conclusions of law, Judge Valenzuela noted that the following
factors supported the imposition of severe sanctions for Cantu’s professional misconduct: the
nature and degree of his professional misconduct; the seriousness and circumstances surrounding
his professional misconduct; the damage to the profession resulting from his professional
misconduct; the profit to Cantu from his misconduct; the need to avoid repetition; the need to
deter others from similar conduct; the need to maintain respect for the legal profession; evidence
presented during trial; other relevant evidence concerning Cantu’s personal and professional
background, and Cantu’s disciplinary record. She concluded, “Based on the factors set forth in
Rule 3.10 of the Texas Rules of Disciplinary Procedure, the appropriate sanction for each of
Respondent’s acts of professional misconduct is disbarment.”
Following the entry of judgment, Cantu filed a Motion for Stay in the trial court, which
the trial court denied on May 11, 2016, citing Texas Rule of Disciplinary Procedure 3.14. Docket
no. 1, Exhibit 2. Rule 3.14 states, “A district court judgment of disbarment or an order revoking
probation of a suspension from the practice of law cannot be superseded or stayed.” On May 5,
Cantu filed a Motion for New Trial, which was denied on June 21, 2016. Docket no 1, Exhibit 3.
Cantu did not raise his constitutional arguments in the trial court.
Cantu next perfected an appeal, which is currently pending before Texas’s Thirteenth
Court of Appeals in Corpus Christi. See Docket no. 1, Exhibit 4. In that action, Cantu filed an
Emergency Motion for Stay of Trial Court Judgment, seeking a stay of the trial court’s
disbarment judgment. Id. at 1. Therein, Cantu argued that the trial court erred in various ways
during trial and that the judgment should be stayed pending appeal. In his “Conclusion and

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Prayer,” he asserted that if the Court of Appeals found (like the trial court) that Rule 3.14 barred
such relief, that Rule 3.14 violated his right to equal protection because a suspension could be
stayed but a disbarment judgment could not. He also asserted that “a per se denial of a stay
constitutes a violation of due process.” The Court of Appeals denied the motion on July 14,
2016 by relying on Texas Rule of Disciplinary Procedure 3.14. It noted that Cantu “argues
exactly for the type of relief that Rule 3.14 expressly and unambiguously prohibits.” In its order,
it stated that it had “examined and fully considered the motion for emergency relief.”
Cantu then filed a Petition for Writ of Mandamus to the Texas Supreme Court, which was
denied on September 2, 2016. Docket no. 1, Exhibit 5. Therein, Cantu asserted that he was
“seeking vindication of his rights with regard to his inability to supersede the facially erroneous
judgment of disbarment, as guaranteed by the United States Constitution, and the Constitution of
the State of Texas.” The “Issues Presented” included (1) Did the trial court abuse its discretion
in denying a stay? (2) Does the prohibition of a stay contained in Tex. R. Disciplinary Procedure
3.14 violate Relator’s due process rights? and (3) Does the prohibition of a stay contained in Tex.
R. Disciplinary Procedure 3.14 violate Relator’s equal protection rights?
Cantu argued that the refusal to grant a stay violated his due process rights insofar as it
“will likely destroy Relator, both his law practice and individually.” He further argued that
refusal to grant a stay violates his equal protection rights because the trial court has discretion to
grant a stay in other situations, but not for disbarred attorneys. Cantu filed a supplement to the
Petition for Writ of Mandamus asserting that he was suffering irreparable harm and requesting
expedited relief. The petition was denied on September 2, 2016, without written analysis or
order.

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On March 1, 2017, Cantu filed his original complaint, which included an application for
temporary restraining order. Docket no. 1. The same day, this Court issued an order denying the
motion for TRO because Cantu had failed to satisfy the procedural requirements for issuance of
an TRO without notice and had not adequately demonstrated a likelihood of success on his
federal constitutional claims (as opposed to in the underlying appeal in state court).
On April 6, Cantu filed his Amended Complaint and Verified Application for Injunctive
Relief, naming the Commission of Lawyer Discipline and the State Bar of Texas as defendants.
Docket no. 6. On April 27, Defendants filed a motion to dismiss (docket no. 10), raising several
arguments, including that (1) Cantu’s federal constitutional claims are barred by the Eleventh
Amendment because the State Bar is an agency of the State and the Commission for Lawyer
Discipline, as one of its committees, is also entitled to immunity, and (2) that the Court should
abstain under the principles of Younger v. Harris. This Court held a hearing on the motion to
dismiss and Cantu’s motion for temporary injunction on May 22, 2017.
DISCUSSION
Eleventh Amendment immunity
Defendants assert that they are entitled to immunity under the Eleventh Amendment,
citing Green v. State Bar of Texas, 27 F.3d 1083, 1087 (5th Cir. 1994) and Krempp v. Dobbs,
775 F.2d 1319, 1321 & n.1 (5th Cir. 1985) (“Plaintiffs’ claims for damages against the State Bar
and the State Commission on Judicial Conduct are barred by the eleventh amendment” and
“[s]ince plaintiffs seek injunctive relief only against these entities and not against a state official,
Cory [v. White, 457 U.S. 85 (1982)] precludes injunctive relief as well.”) (“The State Bar is an
agency of the Texas Judicial Department. The State Commission on Judicial conduct is also an
agency of the state.”). It appears that all courts that have considered the issue, including the Fifth

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Circuit, have concluded that the State Bar and its committees and divisions are state agencies for
purposes of Eleventh Amendment immunity. Bishop v. State Bar of Texas, 791 F.2d 435 (5th
Cir. 1986); Hensler v. Dist. Four Grievance Comm. of the State Bar of Tex., 790 F.2d 390 (5th
Cir. 1986); Gilbert v. Perry, 302 F. App’x 320 (5th Cir. 2008) (per curiam); Martin v. State Bar
of Texas, 2013 WL 3283729 (N.D. Tex. June 28, 2013); Leuvano v. State Bar of Texas, 2011 WL
334291 (S.D. Ill. Jan. 29, 2011); Fred v. State Bar of Texas, 1999 WL 68643 (N.D. Tex. Feb. 5,
1999).
Cantu argued at the hearing that the Eleventh Amendment would not bar patently
unconstitutional actions by the State or its agencies, and noted that he sought only injunctive
relief. In his supplemental response filed after the hearing, Cantu argues that “immunity in
federal court does not apply to prospective relief” and notes that he is not seeking money
damages. However “the Eleventh Amendment by its terms clearly applies to a suit seeking an
injunction.” Cory v. White, 457 U.S. 85, 91 (1982). As alluded to in Kempp, claims for
injunctive and declaratory relief brought against individuals may be asserted without the
Eleventh Amendment immunity bar under Ex Parte Young, 209 U.S. 123 (1908). See also
Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378, 1384 (2015) (“It is true enough
that we have long held that federal courts may in some circumstances grant injunctive relief
against state officers who are violating, or planning to violate, federal law.”). But Cantu has not
sued any individuals or asked to amend his complaint to do so. 1 Therefore, all of Cantu’s current
claims are barred by Eleventh Amendment immunity, and the motion to dismiss on this basis is
granted.

1

Cantu referred at the hearing to the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct.
2292 (2016) and specifically Justice Ginsburg’s opinion therein, to assert that his claims are not barred by the
Eleventh Amendment. However, the claims for injunctive and declaratory relief in Hellerstedt were asserted against
individuals in their official capacities.

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Younger abstention
In the interest of completeness, the Court considers Defendants’ abstention argument in
the event that Cantu were to seek to amend his pleadings to assert claims against individuals.
Defendants contend that this Court must abstain from considering Cantu’s claims pursuant to
Younger abstention principles. There are three criteria for Younger abstention: (1) do the state
bar disciplinary proceedings constitute an ongoing state judicial proceeding; (2) do the
proceedings implicate an important state interest; and (3) is there an adequate opportunity to
raise and have timely decided by a competent state tribunal the federal issues involved.
The first two criteria are satisfied and essentially undisputed here. The Supreme Court
held in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423
(1982) that state bar disciplinary proceedings were of the character to warrant federal court
deference. See also Wightman v. Texas Supreme Court, 84 F.3d 188 (5th Cir. 1996) (“It is now
well recognized that attorney disciplinary proceedings are among those judicial proceedings
invested with sufficient important state interest to warrant deference under Younger.”); Rickhoff
v. Willing, 457 F. App’x 355, *2 (5th Cir. 2012) (noting that Younger abstention has been
extended to apply to certain kinds of civil and administrative proceedings that are judicial in
nature, and circuit courts have applied Younger abstention to judicial oversight and disciplinary
proceedings). In addition, the Supreme Court held in Pennzoil Co. v. Texaco, Inc., 481 U.S. 1
(1987) that Younger abstention principles would apply to attempts to enjoin enforcement of
judgments as well as to claims focused on the underlying proceedings. It is also undisputed that
the disciplinary proceedings were ongoing at the time this action was filed and continue to be
ongoing.

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The disagreement centers on the third requirement – whether Cantu had or has an
adequate opportunity in the state proceedings to raise his federal constitutional challenges.
Defendants contend that Cantu has not and cannot show that Texas courts are incapable of
handling his constitutional claims and that “denial of emergency injunctive relief or denial of
mandamus are not decisions on his constitutional claim.” Motion at 6-7. Defendants find strong
support in Musslewhite v. State Bar of Texas, 32 F.3d 942, 945 (5th Cir. 1994), where the Fifth
Circuit stated “that ‘the Texas scheme for disciplining attorneys is fully capable of considering
the constitutional arguments of attorney-defendants relating to specific procedures followed in
their cases.’”
Cantu argues that he attempted to raise his constitutional arguments in the Court of
Appeals (through the emergency motion to stay the judgment pending appeal) and in the Texas
Supreme Court (through his petition for writ of mandamus), but they have refused to consider his
claims. He contends that “[a]bstention has been satisfied if the state’s highest court has been
provided an opportunity to rule on the matter,” citing Carter v. Estelle, 677 F.2d 427, 442 n.10
(5th Cir. 1982).
The relevant question, however, is not whether the state courts have been given an
opportunity to rule on the constitutional claims, but whether Cantu had or has an adequate
opportunity to raise his federal constitutional claims in the state court. Certainly the state district
court, the Thirteenth Court of Appeals, and the Texas Supreme Court are competent bodies for
analyzing Cantu’s constitutional challenges. Cantu had the opportunity to raise his constitutional
claims in each of these courts. He did not raise his claims in the trial court, or in his appellate
brief to the Court of Appeals, though he has not shown that he lacked the opportunity to do so.
He did raise them by way of motion in the Court of Appeals, and the Court of Appeals’ order

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denying his motion states that it considered the merits of his motion. In addition, he had the
opportunity to raise his claims before the Texas Supreme Court, which denied his petition for
writ of mandamus. 2
Nor has Cantu shown that he is precluded from further raising his claims in the Texas
courts, either in the ordinary course or on an expedited basis. Cantu may yet further raise both
his federal and state constitutional claims in the Texas courts, and (as noted by the Supreme
Court in Pennzoil) the Texas courts could decide the issue on Texas constitutional grounds such
as the open-courts provision, rendering any opinion on the federal claims in this Court advisory.
Cantu has failed to demonstrate that he lacks an adequate opportunity to raise his claims in the
state courts.
Cantu’s reliance on Carter v. Estelle, 677 F.2d 427, 442 n.10 (5th Cir. 1982), a habeas
case, is misplaced, since the rules and procedures governing habeas relief contemplate
exhaustion through the state courts and then federal court review. Such a system is not in place
for 1983 actions such as this one, and Cantu misconstrues Younger abstention as merely a
requirement that a plaintiff exhaust his claims in state court before going to federal district court
for review. But Younger is not a requirement to exhaust state court remedies; Younger does not
permit a litigant to go to federal court after exhausting state court opportunities; it considers only
whether there is an adequate opportunity to raise the constitutional claims in the state
proceedings. Where such an opportunity exists, principles of comity require federal courts to
abstain. 3

Here, Cantu has such an opportunity, and this Court must abstain. 4

2

The Fifth Circuit held in another case on appeal from an order by the Undersigned Judge that “review by the Texas
Supreme Court is not required” to satisfy the opportunity requirement. Rickhoff v. Willing, 457 F. App’x 355 (5th
Cir. 2012).
3
When constitutional claims have been decided by the state court, additional principles of comity and abstention
doctrines preclude federal district courts from considering those same claims on collateral attack, as explained in
Liedtke v. State Bar of Texas, 18 F.3d 315 (5th Cir. 1994) and Musslewhite v. State Bar of Texas, 32 F.3d 942, 945

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CONCLUSION
Defendants’ motion to dismiss (docket no. 10) is GRANTED. Cantu’s claims are barred
by the Eleventh Amendment and, in the alternative, the Court finds that abstention is required.
Cantu’s claims are therefore DISMISSED WITHOUT PREJUDICE. The Clerk is directed to
enter judgment accordingly and to close this case.
It is so ORDERED.
SIGNED this 1st day of June, 2017.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

(5th Cir. 1994). Constitutional questions arising in state proceedings are to be resolved by the state courts. If a state
court errs, it is to be reviewed on appeal and then by writ to the United States Supreme Court.
4
Further, this Court does not find that bad faith, harassment, or other exceptional circumstances dictate to the
contrary.

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