The opinion
Supreme Court of Texas
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No. 23-0956
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Nejla Kassandra Keyfli Lane,
Appellant,
v.
Commission for Lawyer Discipline,
Appellee
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On Appeal from the Board of Disciplinary Appeals
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JUSTICE BOYD, joined by Justice Busby, dissenting.
The Court holds that Nejla Lane did not waive Rule 17.06’s
limitations defense by failing to plead it because Rule 9.04 “is silent
about the need to plead Rule 17.06(A).” Ante at 13. But Rule 9.04 does
more than “identif[y] five potential defenses that may be asserted in
reciprocal discipline cases.” Id. at 9 (emphasis added). To the contrary,
it lists the defenses an attorney “shall allege, and thereafter be required
to prove, by clear and convincing evidence, . . . to avoid the imposition of”
reciprocal discipline. TEX. RULES DISCIPLINARY P. R. 9.04 (emphases
added). The Rule’s plain language makes clear that an attorney who
fails to allege and prove at least one of the listed defenses cannot avoid
reciprocal discipline. Rule 9.04, in other words, lists the only defenses
an attorney can plead and prove to “avoid the imposition of” reciprocal
discipline.
Because Rule 9.04’s list of defenses does not include limitations
under Rule 17.06, limitations under Rule 17.06 is not a defense an
attorney can raise “to avoid the imposition” of reciprocal discipline. In
short, Rule 9.04—which applies specifically and only to
reciprocal-discipline cases—makes it clear that the “[m]iscellaneous”
Rule 17.06 simply does not apply to reciprocal-discipline cases. See id.
Part XVII (“Miscellaneous Provisions”).
Unless, of course, Rule 9.04’s list is not exclusive. But if it is not,
then it is not exclusive as to defenses an attorney must allege as well as
those she must prove. If Rule 9.04’s list is not exclusive, then the Rules
do not (as the Court asserts) “establish their own pleading requirements
for” all “reciprocal discipline cases.” Ante at 13–14. If Rule 9.04 merely
lists and addresses some of the defenses an attorney can assert to avoid
the imposition of reciprocal discipline, then the Rule only “‘var[ies]’ the
requirements for a responsive pleading” that asserts a defense listed in
Rule 9.04. Id. at 14. If that is the case, then (1) Rule 9.04 does not vary
the requirements for pleading limitations under Rule 17.06, (2) Texas
Rule of Civil Procedure 94 thus required Lane to plead a limitations
defense, and (3) Lane waived that defense by failing to plead it. See TEX.
R. CIV. P. 94 (requiring parties to “affirmatively” plead limitations);
BODA INTERNAL PROCEDURAL RULES R. 1.03 (requiring application of
the Rules of Civil Procedure in proceedings before the Board of
Disciplinary Appeals “[e]xcept as varied by these rules”).
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To avoid that obvious result, the Court makes the remarkable
conclusion that limitations—at least limitations under Rule 17.06—is
not a “defense” at all. Ante at 14 n.5. Instead, the Court suggests,
limitations under Rule 17.06 “independently” prevents the Board “from
imposing reciprocal discipline regardless of whether the Rule has been
pleaded.” Id. So, somehow, in the Court’s view, a “statute of limitations”
provides an affirmative defense, but a “rule of limitations” does not.
Nothing, however, supports that illogical distinction.
Like a statute of limitations, the effect of Rule 17.06 is to afford
the Board “a reasonable time to present [its] claims” while protecting
respondents, the Board, and the courts “from having to deal with cases
in which the search for truth may be seriously impaired by the loss of
evidence, whether by death or disappearance of witnesses, fading
memories, disappearance of documents or otherwise.” Murray v. San
Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). And as with
statutes of limitations, Rule 17.06 provides an affirmative defense
because it permits the responding attorney to assert “facts and
arguments that, if true, will defeat the plaintiff’s or prosecution’s claim,
even if all the allegations in the complaint are true.” Zorrilla v. Aypco
Constr. II, LLC, 469 S.W.3d 143, 155–56 (Tex. 2015) (quoting
Affirmative Defense, BLACK’S LAW DICTIONARY (10th ed. 2009)). Treating
a rule of limitations as anything other than an affirmative defense
upends all the work this Court has done to clarify the burden the
defendant or respondent bears to obtain the benefits of limitations. See
Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021) (confirming that
the defendant bears the “burden to establish her affirmative defense of
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limitations at trial” and explaining when and how the burden shifts on
summary judgment). Limitations, by its very “nature,” is an affirmative
defense. Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622
S.W.3d 807, 821 (Tex. 2021).
If it seems to the Court that this result is overly harsh or
unworkable, we should engage in the proper procedural process of
amending the rules to produce a different result. We should not
judicially amend the rules in a case-specific opinion that ignores or
rewrites the very language we have adopted and approved.
I respectfully dissent.
Jeffrey Boyd
Justice
OPINION FILED: June 6, 2025
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