Along with almost every other attorney in the State of Texas, I've been following James Vasilas' case as its traveled the appellate highways (e.g., my May 1, 2006 post). Now, Judge Charles Sandoval has issued a memorandum opinion from his bench on the 380th Judicial District Court of Collin County that should be a welcomed relief not only to Brother Vasilas, but to some degree to lawyers everywhere.
For those of you who aren't well aquainted with this case, here's a brief wrap-up:
James Vasilas is a Dallas attorney who was criminally charged with violating Texas Penal Code section 37.10(a)(5), tampering with a governmental record, which is a third degree felony carrying the possibility of 2 years in jail.
All this came about after James Vasilas represented a man charged with, and acquited of, delivery of marijuana while being convicted of a lesser charge (possession). Attorney Vasilas filed a petition for expunction of his client's criminal record. The petition stated that the delivery charged had been dropped.
Based upon that statement, the District Attorney pursued James Vasilas on the felony charge. (For civil lawyers, dropped and acquited are two different arguments to be made for expunction and technically, the petition held factual error.)
An attorney was charged with a felony because a pleading he filed in civil court allegedly contained a factual error. Imagine the ramifications and the misuse this invites.
At the get-go, the judge quashed the indictment. The DA appealled and the games began.
In Vasilas v State, 187 SW3d 486 (Tex.Crim.App.2006), the court found a petition to be a "government record" under the Texas Penal Code. Whoa.
Then, the Dallas Court of Appeals (on remand) held that Tex.R.Civ.P. 13 (the civil procedural rule against frivolous pleadings that includes the possibility of sanctions) did not override the Penal Code provision, and they set James Vasilas' case for trial.
Vasilas fought back, taking the Dallas appellate opinion up to the Texas Court of Criminal Appeals, arguing the Dallas court was wrong. Amicus curaie briefing was filed by such noteables as the TTLA and the TADC. This time, the Texas Court of Criminal Appeals found the doctrine of in pari materia does not apply, Rule 13 is a court rule adopted by the Texas Supreme Court and therefore not a statute to be construed with any section of the Penal Code.
Then comes Judge Sandoval ....
On October 6, 2008, Judge Charles Sandoval signed his memorandum opinion in the case that started it all (when he granted Vasilas' motion to quash the indictment). Judge Sandoval writes in pertinent part:
"....At any rate, it seems to me that fairness requires that the same standard for pleading should apply to civil and criminal attorneys.
"The State's attorney has governmental immunity, but the rationale for the immunity is similar to the rationale which protects the civil lawyer. These general principles with regard to pleadings have been in existence, I would assume, since before the founding of the nation. I would also assume this rationale applies to legislators' statements made in legislative chambers.
"I find that Mr. Vasilas' pleading could easily have been a mistake of law, or a mistake of fact or the result of carelessness. Accordingly, I find him not guilty. If this sort of case arises in the future, perhaps the defendant may wish to assert that he is protected by the First Amendment, the Fifth Amendment (due process), theSixth Amendment (right to counsel) and the Fourteenth Amendment (equal protection). Who knows what could happen if cert is granted?"
The Bottom Line
It's still possible for attorneys filing pleadings in civil cases to face criminal charges here in Texas. But James Vasilas has been found not guilty, and that makes this a happy day.