Jurisdiction and Operations
The Board of Disciplinary Appeals ("BODA") is a judicial body consisting of twelve lawyers appointed by the Supreme Court of Texas to hear certain attorney discipline cases. The Board came into existence as part of the disciplinary system begun by the adoption of the Texas Disciplinary Rules of Professional Conduct ("TDRPC") by Texas attorneys effective January 1, 1990. Part VII of the Texas Rules of Disciplinary Procedure ("TRDP") created BODA as an independent state-wide body to review certain decisions made by the State Bar Chief Disciplinary Counsel and the District Grievance Committees, to hear compulsory and reciprocal discipline cases, and to establish consistency in interpreting the substantive and procedural rules governing disciplinary matters.
The Board proposes internal rules of procedure and administration for its own operation to the Supreme Court of Texas for promulgation.
Coordination with Other Disciplinary Groups
BODA confers with other groups involved in the planning, administration, or oversight of the grievance system. BODA members and staff speak at continuing legal education seminars on the subjects of ethics and disciplinary procedure. BODA participates extensively in the Texas Center for Legal Ethics and Professionalism's grievance training seminars held in Austin and Houston. The BODA Executive Director is a member of the Supreme Court Task Force on the TDRPC and the State Bar Texas Disciplinary Rules of Professional Conduct Committee.
BODA strongly supports greater interaction and coordination among the various groups with responsibility for some aspect of the disciplinary process, particularly with respect to efforts to revise the substantive and procedural disciplinary rules.
Membership and Staff
BODA became fully operational with nine members on May 1, 1992, the effective date of the TRDP. Due to its heavy caseload, BODA gained three additional members effective October 1, 1994, through the 1994 State Bar of Texas Referendum amending the TDRPC and TRDP. Those revisions also allowed BODA members to serve two consecutive three-year terms.
BODA members represent all areas of the state as well as areas of practice. Members serving in 2009-2010 are from Austin, Dallas, Houston, Fort Worth, Temple, Tyler, Waco and Amarillo. Practice concentrations include civil trial, administrative, appellate, corporate securities, criminal, employment, environmental, family and juvenile, and personal injury. Members' firms include the full range of size from solo practitioners to multi-state firms. In addition to members in private practice, BODA members have included a district attorney, federal public defender and in-house counsel. Approximately half of the members have previous experience working in the disciplinary system.
BODA support staff includes the Executive Director and General Counsel who administers and supervises all aspects of BODA operations and advises the Board. The Executive Director also serves as the official custodian of all BODA records. Assisting the Executive Director are the Deputy Director and Counsel and the Executive Assistant.
The TRDP empower BODA to hear and decide seven types of attorney discipline and disability matters. BODA has original jurisdiction to transfer matters from one grievance committee to another (within and across regions), to hear compulsory and reciprocal discipline cases, and to revoke fully- or partially-probated suspensions imposed by a grievance committee. BODA has appellate jurisdiction over classification screening decisions by the State Bar Chief Disciplinary Counsel's office and judgments issued by evidentiary panels of State Bar grievance committees.
In addition to handling disciplinary cases, BODA has exclusive jurisdiction to indefinitely suspend attorneys from the practice of law who are suffering from a disability. BODA appoints a District Disability Committee to determine whether an attorney is suffering from a disability and reviews the findings and recommendation, if any, from the Committee that the attorney be placed on a probated suspension with terms and conditions of practice. BODA has concurrent jurisdiction with state district courts to hear petitions to terminate disability suspensions.
BODA classification appeal decisions are final. All other decisions may be appealed directly to the Supreme Court of Texas for review under the substantial evidence standard. The Supreme Court has reversed less than five percent of all appeals from BODA decisions.
Caseload and Meetings
Since 1992, BODA has decided an average of over 2,600 cases per year, consistently maintaining current dockets for all types of cases. Classification appeals are decided by panels of three members by telephone conference. The number of filings requires two conferences weekly to keep pace with the classification appeals. The average time required to dispose of a classification appeal from the day the file copy of the complaint is received from the State Bar continues to be about two weeks.
In addition to panel conferences, BODA meets en banc approximately six times a year in Austin to hold hearings and oral argument, decide classification appeals referred to the full board, deliberate, and discuss administrative matters. Review BODA's current docket.
Service on BODA requires a substantial time commitment from each member who reads an average of 60 to 70 classification appeals and participates in an average of two telephone conferences monthly. In addition, members must read case files and conference memos to prepare for hearings as well as attend the full board meetings in Austin. BODA's consistent record of timely case disposition would not be possible without the dedication of its members who serve without compensation.
A complainant may appeal the initial classification screening decision made by the State Bar Chief Disciplinary Counsel's office whether a statement constitutes an inquiry or a complaint. BODA disposes of over 240 classification appeals monthly. Notices of appeal for classification decisions are filed directly with BODA. BODA enters appeals daily as received and notifies the appropriate Regional Office of the Chief Disciplinary Counsel that a matter has been appealed. Each Regional Office of the State Bar then forwards a copy of the grievance to BODA. Because BODA reviews only the screening decision on appeal, the Board reads only the statement and supporting documentation filed by the complainant in determining whether the grievance alleges a violation of the TDRPC. The attorney's response or additional information from complainant cannot be considered.
Dispositions are mailed the day following the conference. BODA reverses approximately nine percent of all classification appeals.
BODA has exclusive original jurisdiction to hear actions for compulsory discipline pursuant to Part VIII of the TRDP. These cases constitute the largest category of hearings before the Board.
Compulsory discipline subjects an attorney to suspension or disbarment for having been convicted of or having accepted deferred adjudication for an Intentional Crime as defined in TRDP 1.06(O). An attorney convicted of an Intentional Crime who is sentenced to a term of incarceration must be disbarred. TRDP 8.05. If the attorney received either deferred adjudication or a fully probated criminal sentence, BODA may either disbar or suspend the attorney for the term of the criminal probation. Respondents whose criminal convictions are on appeal are suspended pending the outcome of the appeal. TRDP 8.06. BODA retains jurisdiction to enter a final judgment either disbarring or suspending the attorney if the criminal conviction is affirmed on appeal. In the event that a conviction is reversed on appeal, BODA will terminate the interlocutory order of suspension upon the respondent filing a motion supported by certified copies of court documents showing that the conviction has been reversed.
Pursuant to the BODA Internal Procedural Rules, compulsory cases are set for hearing at the next en banc meeting after the petition is filed. This must also be at least 21 days after the Respondent is served.
BODA has exclusive original jurisdiction to hear petitions for reciprocal discipline filed by the State Bar Chief Disciplinary Counsel's office. These actions are initiated pursuant to Part IX of the TRDP when an attorney licensed both in Texas and in another jurisdiction is disciplined in the second jurisdiction. BODA then issues an Order requiring the respondent attorney to show cause within 30 days why the imposition of identical discipline in Texas is not warranted.
Defenses to a reciprocal discipline action are limited to proof that the procedure followed in the second jurisdiction lacked due process, that the evidence establishing the misconduct in the second jurisdiction should not be accepted by BODA, that the imposition of discipline identical to that imposed by the second jurisdiction would be a grave injustice, that the misconduct warrants substantially different discipline in Texas, or that the misconduct for which the attorney was disciplined in the second jurisdiction does not constitute professional misconduct in Texas. BODA may impose a sanction as a result of reciprocal discipline regardless of whether the discipline (suspension, probated or partially-probated suspension) in the other jurisdiction has been completed.
Revocations of Probated Suspensions
BODA has exclusive original jurisdiction to hear petitions to revoke probated suspensions imposed by a State Bar grievance committee for the full term of the probation. TRDP 2.20. BODA conducts an evidentiary hearing to determine whether the attorney has committed a material violation of the terms or conditions of probation. Upon finding a violation, BODA actively suspends the attorney for the full term of probation as originally assessed without any credit for the probationary period actually served.
Appeals from Evidentiary Judgments
BODA has exclusive jurisdiction to hear appeals by the respondent or Chief Disciplinary Counsel from judgments issued by evidentiary panels of State Bar grievance committees. TRDP 2.21. BODA internal procedural rules for these appeals are patterned after the Texas Rules of Appellate Procedure. BODA reviews these appeals under the standard of substantial evidence. Parties may file briefs as a matter of right. While granting oral argument is discretionary, BODA typically grants oral argument if requested by either party. Argument may be before the Board meeting en banc or before a panel.
In addition to disciplinary actions, BODA has exclusive original jurisdiction to indefinitely suspend an attorney who is suffering from a disability as defined by the Texas Rules of Disciplinary Procedure. TRDP Part XII. A disability is any condition, with or without a substantive rule violation, which results in the attorney's inability to practice law or otherwise carry out his or her professional responsibilities. When BODA receives a certification from the Chief Disciplinary Counsel of the State Bar of Texas or a State Bar evidentiary panel that an attorney is believed to be suffering from a disability, the chairman appoints a District Disability Committee to proceed de novo to determine whether the disability exists.
BODA has concurrent jurisdiction with state district courts to hear petitions for reinstatement after a disability suspension. The attorney petitioning for reinstatement must prove by a preponderance of the evidence that the reasons for the suspension no longer exist. BODA holds an evidentiary hearing to determine whether termination of the suspension would cause danger to the public and the profession. The record of all proceedings on disability must be sealed and must remain confidential, except as to the Respondent. Only the order of indefinite suspension may be made public.