What is an “evidentiary appeal”? BODA hears and decides appeals from disciplinary judgments issued by an Evidentiary Panel of a Grievance Committee. Such appeals may be filed by the respondent attorney or the Commission for Lawyer Discipline, and are decided on the record from the evidentiary proceeding before the Evidentiary Panel. Appeals from disciplinary judgments issued by district courts are heard and decided by courts of appeals, not BODA.

What rules apply? The Texas Rules of Disciplinary Procedure (TRDP) and the Board of Disciplinary Appeals Internal Procedural Rules (IPR) govern appeals before BODA. As stated in BODA IPR 1.03, the Texas Rules of Appellate Procedure also apply to the extent applicable and except as varied by the TRDP and the BODA IPR.

How do I file a notice of appeal? An appeal is perfected when a written notice of appeal is filed with BODA. The notice of appeal must be filed within 30 days after the date the judgment is signed. In the event a motion for new trial or motion to modify the judgment is timely filed with the evidentiary panel, the notice of appeal must be filed with BODA within 90 days from the date the judgment is signed. A motion for an extension of time to file the notice of appeal must be filed no later than 15 days after the last day allowed for filing the notice of appeal. The motion must comply with BODA IPR 1.09.

Do I have to comply with the terms of the judgment while it is on appeal? Yes. Per Rule 2.24 of the TRDP, unless stayed by the Evidentiary Panel, a disciplinary judgment remains in effect during the pendency of an appeal to BODA. Is there an appeal form or filing fee? No. The notice of appeal may be in pleading or letter form and should contain at a minimum the respondent attorney’s bar card number, address, email address, the State Bar case number(s) from the evidentiary proceeding, and the date of the judgment being appealed.

How do I obtain the clerk’s record? The clerk’s record is prepared and maintained by the support staff of the Office of the Chief Disciplinary Counsel, which serves as the clerk for the Evidentiary Panel. After receiving notice that an appeal has been filed, the clerk of the Evidentiary Panel is responsible for preparing, certifying, and timely filing the clerk’s record. The clerk’s record must be filed within 60 days after the date the judgment was signed. If a motion for new trial or motion to modify the judgment is filed with the Evidentiary Panel, the clerk’s record must be filed within 120 days from the date the original judgment was signed, unless a modified judgment is signed, in which case the clerk’s record must be filed within 60 days of the signing of the modified judgment.

How do I file the reporter’s record? The appellant, at or before the time prescribed for perfecting the appeal, must make a written request for the reporter’s record to the court reporter for the Evidentiary Panel. The request must designate the portion of the evidence and other proceedings to be included. A copy of the request must be filed with the Evidentiary Panel and BODA and must be served on the appellee. The reporter’s record must be filed within 60 days after the date the judgment was signed. If a motion for new trial or motion to modify the judgment is filed with the Evidentiary Panel, the reporter’s record must be filed within 120 days from the date the original judgment was signed, unless a modified judgment is signed, in which case the reporter’s record must be filed within 60 days of the signing of the modified judgment. The reporter’s record must be certified by the court reporter. The court reporter must prepare and file the reporter’s record in accordance with TRAP 34.6 and 35 and the Uniform Format Manual for Texas Reporters’ Records. The court reporter should submit the record electronically by emailing it to [email protected].

What is my briefing deadline? The appellant’s brief must be filed within 30 days after the clerk’s record or the reporter’s record is filed, whichever is later. The appellee’s brief must be filed within 30 days after the appellant’s brief is filed. The appellant may file a reply brief addressing any matter in the appellee’s brief. However, BODA may consider and decide the case before a reply brief is filed. A reply brief, if any, should be filed within 20 days after the date the appellee’s brief was filed.

Can I request an extension of my briefing deadline? Yes. Please consult BODA Internal Procedural Rule 1.09(a) for the requirements for a motion to extend time. The Board requests that any motions for extension of time be filed no less than seven days prior to the briefing deadline. 

How do I file my brief, motions, or other documents? Pleadings are to be filed with the BODA Clerk. Pleadings should be emailed to [email protected], copying opposing counsel. For good cause, when requested, BODA may permit a party to file documents in paper form in a particular case. 

Are there any formatting requirements for my brief? Yes. Please consult BODA IPR 4.05 regarding the required contents of a brief and word limits. 

Who will decide my appeal? Most appeals are determined by the full Board sitting en banc. If the Board conducts oral argument, Board members who are not present for oral argument may still participate in the decision of an appeal, provided they have reviewed the record and briefs. The BODA Chair may assign any appeal to be decided by a panel of the Board. 

Will there be oral argument? A party who has filed a brief and who has timely requested oral argument may argue the case to BODA unless BODA, after examining the briefs, decides that oral argument is unnecessary. A party desiring oral argument must note the request on the front cover of their brief. A party’s failure to timely request oral argument waives the party’s right to argue. A party who has requested argument may later withdraw the request. But even if a party has waived oral argument, BODA may direct the party to appear and argue. 

How much time will I get to argue my case? Each party will get 20 minutes to argue. BODA may extend or shorten that time, on the request of a party or on its own initiative. The appellant may reserve a portion of the allotted time for rebuttal.

Can I present evidence? Appeals from judgments of an Evidentiary Panel are decided exclusively based on the record on appeal. There is no evidentiary hearing, and parties may not offer or present evidence.

Can I appeal BODA’s decision? 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.