* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 28, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-51714

In Re: DAVID MARK CONRAD

Petitioner

Petition for Writ of Mandamus to the United States District Court

for the Western District of Texas, El Paso

No. 3:05-CV-336

Before KING, GARZA, and OWEN, Circuit Judges.

PER CURIAM:*

The district court denied petitioner David Mark Conrad’s

motion to appear pro hac vice and his motion for reconsideration

without giving reasons. Conrad now seeks a writ of mandamus

compelling the district court to admit him pro hac vice or

alternatively to conduct a hearing on his motion. We think it

would be helpful, in ruling on Conrad’s petition, to have the

district court’s reasons for the denial of Conrad’s motion. 

Accordingly, we invite the district court to address the petition

and to state its reasons for denying Conrad’s motion. See FED.

R. APP. P. 21(b)(4) (“The court of appeals may invite or order

the trial-court judge to address the petition [for writ of
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mandamus] . . . .”). We suggest (and it is only a suggestion)

that the court address the following points because we believe it

would be helpful in our consideration of Conrad’s petition.

First, under In re Evans, 524 F.2d 1004 (5th Cir. 1975),

when an attorney “who is a member in good standing of a state

bar” moves before trial to appear pro hac vice, the district

court must grant the motion unless it finds that the attorney has

engaged in conduct that would justify disbarment. Id. at 1007. 

Such a finding cannot be made absent notice and a hearing on the

record at which the attorney has the opportunity to defend his

professional reputation. Id. at 1008.

According to Conrad’s petition, the Supreme Court of Texas

has admitted him to practice under a two-year probationary

license, due to his chemical (alcohol) dependency. Probationary

licenses are permitted by § 82.038 of the Texas Government Code,

which was enacted in 1991 in order to “provide a sensitive method

for dealing with the difficult problem of chemical dependency in

the [legal] profession.” Unglaub v. Bd. of Law Examiners, 979

S.W.2d 842, 846 (Tex. App.——Austin 1998, pet. denied). Under

this provision, the Texas Board of Law Examiners (“Board”) may

not deny a law license to a person “solely because the

person . . . suffers from chemical dependency.” Tex. Gov’t Code

Ann. § 82.038(d)(1) (Vernon 2005); see also TEX. R. GOVERN. BAR

ADM’N XVI(b). Instead, the Board may recommend that an applicant

receive a two-year probationary license to practice law upon a
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finding that the applicant presently suffers from chemical

dependency. Unglaub, 979 S.W.2d at 846; see also TEX. R. GOVERN.

BAR ADM’N XV(h)(3) (West 2005). The probationary license may be

revoked only if the attorney violates the conditions of the order

granting the license or if he otherwise engages in conduct

justifying disbarment. See Tex. Gov’t Code Ann. § 82.038(h). 

After the two-year probationary period expires, the Board may,

upon a finding that the licensee has successfully completed

treatment and has been free from chemical dependency for the

preceding two years, recommend the issuance of a regular license. 

See id. § 82.038(f); TEX. R. GOVERN. BAR ADM’N XVI(g)(1). The Board

may recommend an extension or non-renewal of the probationary

license only upon a finding that the licensee violated a

condition of the probation. See TEX. R. GOVERN. BAR ADM’N

XVI(g)(2).

Additionally, the Board found in its order recommending

Conrad’s probationary license that Conrad “possess[es]

conditionally the present good moral character and fitness

required for admission to the practice of law in Texas,” which

finding was “predicated on [Conrad’s] compliance with the

conditions of th[e] order.” The order enumerates as one of the

twenty-one conditions that Conrad “remain in good standing and on

active status with the State Bar of Texas throughout the term of

his probationary license.” As we understand Conrad’s status, he

is fully entitled to practice law in the courts of Texas provided
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that, as he averred in his declaration (under penalty of perjury)

attached to his September 26, 2005 motion to reconsider, he is in

compliance with the conditions of his probation.

Second, it appears to us that Conrad’s motion to appear pro

hac vice may be affected, and perhaps resolved, by the proposed

amendments to Western District of Texas Local Rule AT-1, assuming

that the amendments are approved by the Fifth Circuit Judicial

Council without change. The new Local Rule AT-1(f)(1) would

permit “[a]n attorney who is licensed by the highest court of a

state or another federal district court” to appear pro hac vice

in the Western District of Texas “by permission of the judge

presiding.” Conrad is a member in good standing of the bar of

the Southern District of Texas (according to his petition and the

records of that court), and he thus appears to lie within the new

rule’s scope. 

Finally, we note that the district court retains

jurisdiction over this matter, even while Conrad’s petition

remains pending before us. See Woodson v. Surgitek, Inc., 57

F.3d 1406, 1416 (5th Cir. 1995) (“As a general rule, a perfected

appeal from a final judgment or reviewable order of a district

court does vest jurisdiction in the appellate court and

terminates the jurisdiction of the district court. This rule

does not apply to petitions for writ of mandamus.”). Therefore,

if in considering our request the district court decides that

Conrad’s motion should be granted, it may vacate its prior order
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and issue a new order admitting him pro hac vice. If the

district court does so, we ask that the court notify us of its

action in lieu of addressing Conrad’s petition.

For the foregoing reasons, the district court is invited to

address the petition for writ of mandamus pursuant to Rule

21(b)(4) of the Federal Rules of Appellate Procedure. If the

district court opts to address the petition, it may file its

comments with the clerk of court within 30 days of the date of

this order.

RESPONSE REQUESTED PURSUANT TO FED. R. APP. P. 21(b)(4).