What is a disability case? It is a de novo proceeding to determine whether a lawyer suffersfrom a disability as defined by the Texas Rules of Disciplinary Procedure. A lawyer found tosuffer from a disability shall be suspended for an indefinite period from the practice of law. 

What rules apply? Parties to a disability case should carefully review Part XII of the Texas Rules of Disciplinary Procedure and Part XII of the BODA Internal Procedural Rules. 

What is a “disability” within the meaning of the Texas Rules of Disciplinary Procedure? “Disability” means any physical, mental, or emotional condition that, with or without a substantive rule violation, results in the attorney’s inability to practice law, provide client services, complete contracts of employment, or otherwise carry out his or her professional responsibilities to clients, courts, the profession, or the public. Whether a respondent attorney suffers from a disability is decided after an evidentiary proceeding before a committee appointed by BODA.

How is a disability case initiated? Should the Chief Disciplinary Counsel reasonably believe based upon investigation of a grievance that an attorney is suffering from a disability, it forwards the complaint and any other documents or statements which support a finding that the attorney is suffering from a disability immediately to BODA. In addition, an Evidentiary Panel hearing a disciplinary proceeding may find that the Respondent suffers from a disability and forward that finding to BODA.

Who decides disability cases? Disability cases are decided by a District Disability Committee. BODA appoints the Committee, which is comprised of the following: (1) an attorney; (2) a doctor of medicine or mental health care provider holding a doctorate degree, trained in the area of disability; and (3) a public member who does not have any interest, directly or indirectly, in the practice of the law other than as a consumer. The District Disability Committee will certify its finding regarding disability to BODA, which then issues the final judgment.

How is the District Disability Committee chosen? The District Disability Committee is appointed by the Chair of the Board of Disciplinary Appeals. Anyone interested in serving on a District Disability Committee should visit the Volunteer Opportunities page on our website. 

Can I request appointed counsel if I am not able to represent myself? The Board of Disciplinary Appeals may appoint any attorney to represent the interests of the disabled attorney. To receive appointed counsel under TRDP 12.02, the Respondent must file a written request with the BODA Clerk within 30 days of the date that the Respondent is served with the petition for indefinite disability suspension. A late request must demonstrate good cause for the Respondent’s failure to file a timely request.

How do I file pleadings? Pleadings are to be filed with the BODA Clerk. Pleadings should be emailed to [email protected], copying opposing counsel. For good cause, upon request, BODA may permit a party to file documents in paper form in a particular case. 

Can I make discovery requests? The District Disability Committee may permit limited discovery. The party seeking discovery must file with the BODA Clerk a written request that makes a clear showing of good cause and substantial need and a proposed order. If the District Disability Committee authorizes discovery in a case, it must issue a written order. The order may impose limitations or deadlines on the discovery. Discovery may include requests for the Respondent to submit to a physical or mental examination by a qualified healthcare or mental healthcare professional.

Is the process and the hearing itself open to the public? No. All disability proceedings before the District Disability Committee and BODA are closed to the public. All matters before the District Disability Committee are confidential and are not subject to disclosure or discovery, except as allowed by the TRDP or as may be required in the event of an appeal to the Supreme Court of Texas. If the proceeding results in a judgment of indefinite disability suspension, the judgment will be made public.

Where will my hearing take place? The hearing time and location will be determined by the Chair of the District Disability Committee. This includes conducting the hearing via remote connection.

Can I waive my right to a hearing and enter into an agreed judgment? Yes. A Respondent who has been notified that a disability referral will be or has been made to BODA may, at any time, waive in writing the appointment of the District Disability Committee or the hearing before the District Disability Committee and enter into an agreed judgment of indefinite disability suspension, provided that the Respondent is competent to waive the hearing. If the Respondent is not represented, the waiver must include a statement affirming that the Respondent has been advised of the right to appointed counsel and waives that right as well. 

What procedures govern reinstatement after a disability suspension? Rule 12.06 of the Texas Rules of Disciplinary Procedure governs reinstatement proceedings. 

What happens to any pending grievances? While a disability proceeding is pending, any pending complaints will be abated. If there is no finding of disability by the District Disability Committee, the entire record and the finding of the District Disability Committee will be returned to the Chief Disciplinary Counsel and the matter shall continue in the disciplinary process from the point where it was referred to BODA for the determination of disability. Any statute of limitations applying to a disciplinary matter is tolled during the period of any disability suspension. 

Can I appeal an indefinite disability suspension? Yes. A final decision by BODA may be appealed to the Supreme Court of Texas. The appealing party must file a notice of appeal with the clerk of the Supreme Court of Texas within 14 days of receiving notice of BODA’s decision. There is no fee for the appeal.