Joe Alfred Izen, Jr. v. Commission for Lawyer Discipline

Opinion issued May 28, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-01114-CV

JOE ALFRED IZEN JR., Appellant

V.

COMMISSION FOR LAWYER DISCIPLINE, Appellee

On Appeal from 129th District Court

Harris County, Texas

Trial Court Cause No. 2004-41123

O P I N I O N

This appeal concerns a telephone book advertisement and two website

advertisements by a Texas attorney, appellant, Joe Alfred Izen Jr., who was

prosecuted by the appellee, the Commission for Lawyer Discipline (the

"Commission"). Izen appeals the judgment that suspends his license to practice

law, probated for 24 months, for various violations of the Texas Disciplinary Rules

of Professional Conduct (hereafter, "the Rules"). In six issues challenging the jury's

verdict and the trial court's judgment, Izen contends the evidence is legally and

factually insufficient; his due process rights were violated; there is a conflict in the

jury's answers; the trial court erred in its evidentiary rulings; the trial court erred in

its instructions to the jury; and the trial court erred by allowing the jury to deliberate

when the judge was outside of Harris County. We conclude that Izen's due process

rights were not violated by the Commission's prosecution of the violations of the

Rules by the websites and that those violations are each independent grounds

sufficient to uphold the judgment. We also conclude that the remainder of Izen's

complaints are either waived or are alternative grounds that are unnecessary to

support the judgment. We affirm.

Background

Izen, an attorney licensed to practice in Texas, employed Joe D. Sanchez, who

was not an attorney. Izen placed three advertisements. One was an advertisement

that appeared in a Brady, Texas telephone directory and two were websites. In

describing the background of this case, we discuss (A) a description of the three

advertisements, (B) the Committee's administrative action, (C) the jury trial, and (D)

the post-verdict motions filed by Izen.

A. The Three Advertisements

Izen placed an advertisement that appeared in a Brady, Texas telephone

directory. The advertisement's size was one-half page. It stated, "Texas Legal

Services Clinic. Divorce $79.00." The advertisement also listed the areas of wills,

probate, bankruptcy, "workmans comp.," personal injury, criminal law, and family

law. Izen was listed as a "staff attorney" and Joe D. Sanchez was identified as an

"associate." In addition to listing a telephone number, the advertisement stated, "Not

Certified by the Texas Board of Legal Specialization."

Izen also had a website called www.joeizen.com. It stated,

Joe A. Izen Jr. is considered by many of his clients to be a highly

proficient attorney with few peers in the legal profession when it comes

to a committed defense of those he represents. Izen has been licensed

over 20 years and is the lead attorney for many of the more difficult

cases. His practice has grown rapidly across the nation and even into

other countries such as Belize, where he stopped the SEC from illegally

obtaining records of a resident trust company. He has won numerous

battles with the IRS. It can be our hope that we not only can win many

more important battles against abusive government agencies, but that

we can be part of the reform efforts of some of these agencies in order

to bring them back into their proper role of public servants which will

then gain back public acceptance.

. . . .

Licensed in Texas - Not Certified by the Texas Board of Legal

Specialization. Licensed to practice before the Texas Supreme Court[.]

Federally licensed to practice in the U.S. District Courts of the Eastern,

Western, Northern and Southern Districts of Texas, Eastern and

Western Districts of Arkansas. Also licensed at the appellate level to

practice before the First, Second, Third, Fourth, Fifth, Sixth, Seventh,

Eight[h], Ninth, Tenth, Eleventh, District of Columbia and Federal

Circuits, the U.S. Tax Court, the U.S. Court of Claims, U.S. Court of

Military Appeals and the United States Supreme Court.

Izen also advertised in another website, www.divorceintexas.net. In pertinent part,

that website stated,

Texas Legal Service Clinic - Divorce in Texas Made Easy

Self Help Divorce Packages STARTING At $12.50

1,000s of satisfied clients throughout Texas!!! Unbelievably low

prices!!!

. . . .

Texas Legal Services Clinic (TLSC) is the trade name for the Law

Offices of Joe Alfred Izen, Jr., an attorney licensed to practice law for

over 20 years and gained considerable experience in all areas of the

law.

None of these advertisements were filed with the Advertising Review

Committee (hereafter "the Committee") before their dissemination.

B. The Committee's Administrative Action

Following dissemination of the three advertisements, the Committee sent a

letter to Izen in January 2003 concerning the Brady advertisement. The letter told

Izen that the dissemination of the Brady advertisement violated Part 7 of the Rules

because it was not filed with the Committee before its dissemination. The letter also

informed Izen that he had 20 days to administratively resolve the violations of Part

7 by filing the advertisement, and paying filing and late-filing fees. The offer of an

administrative resolution concerned the Part 7 violations by the Brady advertisement

only. A copy of the Brady advertisement was attached to the Committee's letter.

In response to the Committee's letter, Izen submitted an application for review

of the Brady advertisement, along with the $300 filing fee, and a copy of the Brady

advertisement. Izen did not mention either www.joeizen.com or

www.divorceintexas.net in anything he filed with the Committee. The form

application sent by Izen had a section to identify the "Nature of advertisement or

written solicitation" made the subject of the application. Izen put an "X" in the

blank next to "Telephone Directory" and did not mark the blank next to "Other

(billboards, websites, etc.)" or indicate any website's URL address in the space

indicated on the form. The only mention concerning any internet-related item in

Izen's response to the Committee appears in the portion concerning his contact

information. This section contains blanks for the applicant to fill in information such

as "Lawyer," "Bar Card #," "Firm," "Firm's Principal Office Address," "Phone,"

"Fax," and "E-mail." In the blank following the term "E-mail," Izen wrote

"joeizen@joeizen.com."

The Committee did not administratively resolve any of Izen's violations. The

Committee referred the violations in the Brady advertisement, as well as violations

it discovered concerning the two websites, to the Commission. The Commission

filed a petition in district court.

C. The Jury Trial

The case was tried before a jury and presided over by Judge Jean Boyd, who

was appointed by the Texas Supreme Court. See Tex. R. Disciplinary P. 3.02,

reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A-1 (Vernon 2005).

(providing for appointment of active district judge who does not reside in

Administrative Judicial District in which respondent resides). After the close of

evidence, the jury began deliberating on Wednesday, September 12, 2007. At the

end of that day, the jury was instructed to return to court at 10 a.m. the next morning,

although there was concern that "a huge storm, perhaps a hurricane" was

approaching Houston. The trial court judge, who was not from the area, left Harris

County. The storm, however, was not as bad as anticipated and the jury appeared in

court the next day. Sometime during the morning, the jury sent a question to the

judge. The judge did not answer the question but instead instructed the bailiff to tell

the jury to go home and return the next morning, Friday, September 14. The judge

returned to court Friday morning, answered the jury's question, and, later that day,

received the jury's verdict.

The jury was asked 12 questions concerning possible violations of the Rules. (1)

The jury found for Izen and against him on certain questions concerning (1) the

Brady advertisement, (2) the www.divorceintexas.net website, and (3) the

www.joeizen.com website.

1. The Brady Advertisement

Concerning the Brady advertisement, the jury found in favor of the

Commission, as follows:

• Question 1 determined that Izen practiced under a trade name, a name

that is misleading as to the identity of the lawyer or lawyers practicing

under such name [Rule 7.01(a)];

• Question 2 determined that Izen advertised in the public media or

sought professional employment by written communication under a

trade or fictitious name [Rule 7.01(e)];

• Question 5 determined that Izen made a false or misleading

communication that is likely to create an unjustified expectation about

results the lawyer can achieve, or states or implies that the lawyer can

achieve results by means that violated these rules or other law [Rule

7.01(a)(2)];

• Question 8 determined that Izen failed to disclose the geographic

location of the principal office or days and times that a lawyer will be

present or that meetings will be by appointment only [Rule 7.04(j)];

• Question 9 determined that Izen "failed to file with the Lawyer

Advertisement and Solicitation Review Committee of the State Bar of

Texas, either before or concurrently with the advertisements that he

placed and failed to file a copy of each advertisement in the public

media with the Lawyer Advertisement and Solicitation Review

Committee of the State Bar of Texas" [Rule 7.07(b)];

• Question 11 determined that Izen ordered, encouraged, or permitted

Joe Sanchez to place the advertisement [Rule 5.03(b)(1)]; and

• Question 12 determined that Izen failed to review and approve in

writing the advertisement [Rule 7.04(e)].

The jury found in favor of Izen in five questions concerning the Brady

advertisement. Specifically, the jury found in favor of Izen on the following:

• Question 3 determined the evidence failed to show that Izen made a

false or misleading communication of the identity, qualifications or

services of any lawyer or the firm in the advertisement [Rule 7.02(a)];

• Question 4 determined that the evidence failed to show that Izen made

a communication that contains a material misrepresentation of fact or

law, or omits a fact necessary to make the statement considered as a

whole not materially misleading in the advertisement he placed [Rule

7.02(a)(1)];

• Questions 6 determined the evidence failed to show that Izen violated

the Rule prohibiting statements comparing his services with other

attorneys [Rule 7.02(a)(3)];

• Question 7 determined that the evidence failed to show Izen violated

the Rule requiring a disclaimer that he is not certified by the Texas

Board of Legal Specialization [Rule 7.04(b)(3)]; and

• Question 10 determined that the evidence failed to show that Izen

violated the Rule that he reasonably supervise Joe Sanchez, a

nonlawyer member of his firm [Rule 5.03(a)].

2. The Website "www.divorceintexas.net"

The jury found in favor of the Commission concerning

www.divorceintexas.net, as follows:

• Question 1 determined that Izen practiced under a misleading trade

name [Rule 7.01(a)];

• Question 2 determined that Izen advertised under a misleading or

fictitious trade name [7.01(e)];

• Question 7 determined that Izen did not conspicuously state he was

not certified by the Texas Board of Legal Specialization [Rule

7.04(b)(3)];

• Question 8 determined that Izen failed to disclose the days and times

he would be at a geographic location [Rule 7.04(j)]; and

• Question 9 determined that Izen failed to file the advertisement with

the Committee before or concurrently with its dissemination [Rule

7.07(b)].

Like the Brady advertisement, the jury found in favor of Izen concerning Questions

3, 4, and 6. The jury, however, also found in favor of Izen in Question 5 where it

determined the evidence failed to show he made a false or misleading

communication about the results the lawyer could achieve.

3. The Website "www.joeizen.com"

Concerning the website www.joeizen.com, the jury found in favor of the

Commission, as follows:

• Question 3 determined that Izen made a false or misleading

communication of the identity, qualifications or services of any lawyer

or the firm in the advertisements that he placed [Rule 7.02(a)]; and

• Question 9 determined that Izen "failed to file with the Lawyer

Advertisement and Solicitation Review Committee of the State Bar of

Texas, either before or concurrently with the advertisements that he

placed and failed to file a copy of each advertisement in the public

media with the Lawyer Advertisement and Solicitation Review

Committee of the State Bar of Texas" [Rule 7.04(b)(3)].

Like the Brady advertisement, the jury found in favor of Izen in Questions 4 and 6.

The jury, however, also found in favor of Izen in Question 5.

D. The Post-verdict Motions

After the jury was discharged, Izen filed a motion for new trial and "Motion

to Disregard Verdict of Jury on Certain Special Issues, Renewed Motion for Directed

Verdict and Motion to Enter Judgment." In this motion, Izen challenged the legal

and factual sufficiency of the evidence to support the jury's findings. Izen also

identified several jury answers that he contends conflict with one another. The judge

did not sign an order denying any of these motions, so they were overruled by

operation of law. See Tex. R. Civ. P. 329b(c). The judgment specifically recites that

the jury found violations of Rules 7.01(a), 7.01(e), 7.02(a), 7.02(a)(2), 7.04(b)(3),

7.04(j), 7.07(b), 7.04(e), and 5.03(b)(1), and states, "The Court further finds and

concludes that the proper discipline of Respondent for each act of professional

misconduct as found in this cases is suspension from the practice of law."

Due Process

In his first issue, Izen contends the judgment of the trial court should be

reversed and judgment rendered in his favor "based on the State Bar Advertising

Review Committee and the Commission for Lawyer Discipline's violation of their

own rules and regulations[,] administrative due process[,] and failure to exhaust

administrative remedies." Although he broadly states his issue, Izen's sole

complaint concerns his argument that the Committee did not abide by the

representations it made in the January 2003 letter. Izen contends that the Committee,

by sending him the letter and accepting his late-filing fee, created a right for Izen to

have any problems with the Brady advertisement resolved administratively and that

the Committee's failure to do so was a denial of due process. Izen asserts the letter

from the Committee creates his entitlement to "an initial effort to handle violations

administratively before reporting an attorney to the grievance system." Izen

contends the letter is a mutually explicit understanding to reach "informal resolution

of any [c]omplaint concerning Izen's ads, without a filing of a formal grievance" or

"resolve any potential grievance informally." Specifically, Izen states, "The

Committee failed to follow the very procedures which it outlined in its letters [sic]:

(1) pay a fee, (2) apply for a review of the ad, and (3) resolve any potential grievance

informally."

A. Due Process Through Notification of Charges

Disbarment proceedings impose a punishment or penalty on a lawyer and,

therefore, a lawyer is "entitled to due process, which includes fair notice of the

charge." In re Ruffalo , 390 U.S. 544, 550 , 88 S. Ct. 1222, 1226 (1968). Due

process, including notice of the charges, is required "in any proceeding which is to

be accorded finality." Peralta v. Heights Med. Ctr., Inc. , 485 U.S. 80, 84 , 108 S. Ct.

896, 899 (1988). Due process, however, is not implicated by a grievance committee

investigation because it is not accorded finality; the lawyer has a right to respond to

charges either before an evidentiary panel of the grievance committee or at trial in

district court. Weiss v. Comm'n for Lawyer Discipline , 981 S.W.2d 8, 13 (Tex.

App.--San Antonio 1998, pet. denied); see Minnick v. State Bar of Tex. , 790 S.W.2d

87, 90 (Tex. App.--Austin 1990, writ denied) (grievance committee proceeding not

final because lawyer had right to de novo trial in district court); Sims v. Comm'n for

Lawyer Discipline , No. 34229, 2006 WL 6242395 , at *5 (Tex. Bd. Disciplinary

Appeals June 8, 2006) (lawyer not entitled to due process during initial investigation

by grievance committee because no discipline can be imposed until lawyer given

notice and opportunity to choose between evidentiary panel and trial in district

court).

In Ruffalo , the Supreme Court held that the due process rights of Ruffalo, an

attorney, were violated by lack of notice of the disciplinary charges that had been

filed against him by the Ohio Board of Commissioners on Grievance and Discipline.

In re Ruffalo , 390 U.S. at 551 , 88 S. Ct. at 1226 . The Board charged Ruffalo with

12 specific alleged acts of misconduct. Id. at 546 , 88 S. Ct. at 1223-24 . After the

adversarial proceeding had begun, Ruffalo and an investigator he employed in his

practice testified. Id. , 88 S. Ct. at 1224 . Based on the testimony of Ruffalo and the

investigator, the Board added a thirteenth charge against Ruffalo. Id. , 88 S. Ct. at

1224 . The Board found Ruffalo guilty of seven acts of misconduct, including the

thirteenth charged act that had been added after the proceeding against him had

commenced. Id. at 547 , 88 S. Ct. at 1224 . The Supreme Court of Ohio found the

evidence sufficient to sustain only two of the charges, one of them being the

thirteenth charge. Id. , 88 S. Ct. at 1224 . After the completion of the state

proceedings, the federal court of appeals ordered Ruffalo to show cause why he

should not be disbarred from practice in that court. Id. at 545 , 88 S. Ct. at 1223 . The

majority of the court of appeals found that Ruffalo's conduct, as alleged in the

thirteenth charge, justified disbarring Ruffalo. Id. at 545, 547 , 88 S. Ct. at 1223,

1224 .

Izen does not present a Ruffalo -type-due-process challenge premised on

adequate notice of the allegations, but instead focuses solely on the due process he

was entitled to based on his formation of a contract with the Committee. Compare

id. Izen's due process challenge in the trial court and in this Court is limited to the

failure of the Committee to comply with the representations contained in the January

2003 letter concerning the Brady advertisement; Izen does not assert any other due

process challenge either in the trial court or in this Court. We conclude Izen has not

presented any due process challenge other than the assertion of a contract with the

Committee concerning the Brady advertisement only.

B. Due Process by Formation of Contract

Izen contends that the January 2003 letter was a contract between him and the

Committee that entitled him to the due process described in the letter, which he

believed meant an administrative review of the Brady advertisement.

1. Applicable Law

For a due process claim premised on the formation of a contract, the plaintiff

must assert a property interest that is protected by the Fourteenth Amendment of the

United States Constitution or article I, section 19 of the Texas Constitution. See Bd.

of Regents of State Colls. v. Roth , 408 U.S. 564, 569-70 , 92 S. Ct. 2701, 2705 (1972)

(noting "due process appl[ies] only to the deprivation of interests encompassed by

the Fourteenth Amendment's protection of liberty and property"); see also

Concerned Cmty. Involved Dev., Inc. v. City of Houston , 209 S.W.3d 666, 671 (Tex.

App.--Houston [14th Dist.] 2006, pet. denied) ("The Due Process Clause is only

activated when there is some substantial liberty or property interest which is

deserving of procedural protections."). "To have a property interest in a benefit, a

person . . . must have more than a unilateral expectation of it. He must, instead, have

a legitimate claim of entitlement to it." Nat'l Collegiate Athletic Ass'n v. Yeo , 171

S.W.3d 863 , 870 n.19 (Tex. 2005) (quoting Roth , 408 U.S. at 577 , 92 S. Ct. at 2701 ).

A person's property interest may arise from "such rules or mutually explicit

understandings that support his claim of entitlement." Perry v. Sindermann , 408

U.S. 593, 601 , 92 S. Ct. 2694, 2699 (1972). A mutually explicit understanding can

be supported by a written contract or an implied contract. Id. at 601-02 , 92 S. Ct.

at 2699-2700; see also Johnson v. Sw. Miss. Reg'l Med. Ctr. , 878 F.2d 856, 858 (5th

Cir. 1989) (stating property interest "may be created directly by state statute or by

a written contract, or by a 'mutually explicit understanding' enforceable under state

law as an implied contract").

Whether express or implied, "[p] arties form a binding contract when the

following elements are present: (1) an offer, (2) an acceptance in strict compliance

with the terms of the offer, (3) meeting of the minds, (4) each party's consent to the

terms, and (5) execution and delivery of the contract with the intent that it be mutual

and binding." Williams v. Unifund CCR Partners Assignee of Citibank , 264 S.W.3d

231, 236 (Tex. App.--Houston [1st Dist.] 2008, no pet.) (citing Winchek v. Am.

Express Travel Related Servs. Co. , 232 S.W.3d 197, 202 (Tex. App.--Houston [1st

Dist.] 2007, no pet.)). "'Meeting of the minds' describes the mutual understanding

and assent to the agreement regarding the subject matter and the essential terms of

the contract." City of The Colony v. N. Tex. Mun. Water Dist. , 272 S.W.3d 699, 720

(Tex. App.--Fort Worth 2008, pet. denied).

2. Analysis of Letter's Reference to Brady Advertisement

In its entirety, the January 2003 letter from the Committee to Izen concerning

the Brady advertisement stated,

Dear Joe Alfred Izen, Jr:

It has come to the attention of the staff of the Advertising Review

Department that you or your firm has disseminated either a public

media advertisement or a written solicitation communication in

violation of Part 7 of the Texas Disciplinary Rules of Professional

conduct. A copy of the ad or writing in question is attached .

Section 7.07 of the Texas Disciplinary Rules of Professional Conduct

outlines the filing requirements for advertisements and written

solicitations. Most ads and written solicitations are required by Rules

7.07(a) or (b) to be filed with the Advertising Review Committee upon

first dissemination. There are certain exemptions to these filing

requirements which are delineated in Rule 7.07(d). Ads and writings

exempt under 7.07(d) do not have to be filed but still must comply with

all other applicable provisions of Part 7. Ads and writings not exempt

under 7.07(d) must meet the filing requirements of 7.07(a) or (b) and

must also comply with all other applicable provisions of Part 7. Please

note that if an ad or writing is non-exempt, the failure to file such ad or

writing with the Committee is a violation of the advertising rules even

if the ad or writing complies with the rules in all other respects. (Also,

please note that any change in the text of a previously filed

advertisement or written solicitation letter necessitates a new filing;

therefore, if you believe that you have previously filed and received an

approval on this material, you should check to ensure that the attached

is exactly the same as your previously approved material. If it is, you

should contact me immediately with the file number under which the

material was previously approved.)

The Committee can report to the appropriate grievance committee any

lawyer whom it finds has disseminated an advertisement or writing that

violates any portion of Part 7 . However, in an initial effort to handle

violations administratively before reporting an attorney to the

grievance system , the Committee will allow you one opportunity to

submit your advertisement or written solicitation for review at this time .

Within twenty (20) days of your receipt of this letter, you are requested

to file the attached ad or writing with the Advertising Review

Department.

An advertisement or written solicitation can only be filed in the form

of an official application packet which includes: a copy of the ad or

writing, a completed application form, and a $75.00 filing fee. In

addition, there is a late filing fee of $225.00 assessed to each

advertisement or written solicitation letter that is not timely filed as

required by Rule 7.07(a) or (b) but rather is filed in response to a

certified letter from the Advertising Review Committee. Therefore, in

order for us to accept your application packet for filing, it must be

accompanied by a $75.00 standard filing fee and a $225.00 late

filing fee for a total of $300.00. These fees should be combined into

one check. Each ad or writing must be filed separately. Written

solicitations must be accompanied by a sample copy of the envelope in

which they are to be mailed. Television or radio commercials must

include both a copy of the ad on video or audio tape and a detailed

production script. The rules, filing requirements, and application form

were published in the June 1995 issue of the Texas Bar Journal. As an

accommodation to you, an application form has been enclosed. You

may also access these rules and download the application form at

www.texasbar.com/members/license/adreview/adreview.asp.

If your completed application packet is not received in this office by the

twentieth (20th) day following the date of your receipt of this letter, the

Committee will forward this matter to the appropriate grievance

committee for disciplinary action . It is absolutely essential that you

include your unique file number (referenced above) on all

correspondence pertaining to this matter. The inclusion of this number

will allow us to accurately remove your file from those pending

disciplinary action. Thank you for your cooperation.

(Bold and underlined text in original and italics added for emphasis).

The Committee's letter shows that, in exchange for payment of the filing fee

and the late-filing fee by Izen, it would administratively review the violation of the

Rules concerning Izen's failure to file the Brady advertisement before or

concurrently with the advertisement's dissemination, which was the violation

described by Rule 7.07(b). The letter commingles its discussion of all the Part 7

violations that may be in the Brady advertisement. The letter explains that for the

Brady advertisement to be in compliance with the Rules it needed to have been filed

with the Committee before or concurrently with its dissemination, and it needed to

comply "with the rules in all other respects." The letter then explains that the

Committee "can report any lawyer who it finds has disseminated an advertisement

or writing that violates any portion of Part 7." The letter then offers "to handle

violations administratively" if Izen sends in the attached Brady advertisement with

his official application packet, filing fee, and late fee. The letter says Izen has "one

opportunity" to submit his advertisement "for review at this time."

Assuming Izen is correct that the Committee offered him an administrative

resolution of all violations of Part 7 of the Rules concerning the Brady

advertisement, and that he accepted that offer by mailing the advertisement to the

Committee and paying the filing fees and late fees, the Committee was bound to that

agreement. See Perry , 408 U.S. at 601-02 , 92 S. Ct. at 2699-2700 . The jury found

the Brady advertisement violated various portions of Part 7 in its answers to

Questions 1, 2, 5, 8, and 12, and we assume the trial court erred to the extent that it

included those violations as part of its judgment. See Univ. of Tex. Med. Sch. v.

Than , 901 S.W.2d 926, 933 (Tex. 1995).

Having assumed that Izen had a due process interest in administratively

resolving the Rule 7 violations caused by the Brady advertisement, we must

determine the proper remedy. Izen simply asserts, without analysis or citation to any

authority, "The [trial court's] judgment should be reversed and judgment should be

rendered in Izen's favor dismissing all counts of the disciplinary complaint." "In

general, however, the remedy for denial of due process is due process." Univ. of Tex.

Med. Sch. , 901 S.W.2d at 933 . Here, assuming Izen was not afforded the

administrative process in the letter, the Committee should not have referred his Part

7 violations from the Brady advertisement to the Commission, and the Commission

should not have filed a charge of misconduct based on those violations. The

appropriate remedy for that violation is reversal of the trial court's judgment to the

extent it is based on Part 7 violations from the Brady advertisement. See id. Izen,

however, is not entitled to dismissal of all the violations in the judgment if there are

violations of the Rules unrelated to the Part 7 violations by the Brady advertisement.

See Ibarra v. Housing Authority , 791 S.W.2d 224, 226 (Tex. App.--Corpus Christi

1990, writ denied). To prevail in this appeal, Izen must show that each independent

basis for the judgment is erroneous. See Cluck v. Comm'n for Lawyer Discipline ,

214 S.W.3d 736, 739 (Tex. App.--Austin 2007, no pet.) ("The violation of one

disciplinary rule is sufficient to support a finding of professional misconduct."); see

also Britton v. Tex. Dep't of Criminal Justice , 95 S.W.3d 676, 681 (Tex.

App.--Houston [1st Dist.] 2002, no pet.) ("[When independent jury findings fully

support a judgment, an appellant must attack each independent jury finding to obtain

a reversal.").

3. The Rule 5.03 Brady Advertisement Violation and the Two

Websites

Excluding the Part 7 violations from the Brady advertisement, the judgment

can be upheld by the Rule 5.03 violations from the Brady advertisement, as well as

the multiple violations of the Rules by the two websites. Izen's due process rights

were not violated by the inclusion of the Rule 5.03 violation by the Brady

advertisement because only the Part 7 violations for that advertisement were

mentioned in the letter. In Question 11, the jury determined Izen violated Rule

5.03(b)(1) because he ordered, encouraged, or permitted Joe Sanchez to place the

Brady advertisement. Because only Part 7 of the Rules was mentioned in the letter,

the trial court's judgment properly included the Rule 5.03 violation for the Brady

advertisement. See Ibarra , 791 S.W.2d at 226 (reversing portion of judgment

obtained in violation of due process violation but affirming portion that did not

violate due process).

Similarly, the judgment properly included the violations by the websites

because they were not mentioned in the communications between the Commission

and Izen. The Committee's letter specified, "A copy of the ad or writing in question

is attached." A copy of the Brady advertisement was attached. The Committee

never mentioned www.joeizen.com or www.divorceintexas.net. The Committee

expressly stated,

In addition, there is a late filing fee of $225.00 assessed to each

advertisement or written solicitation letter that is not timely filed as

required by Rule 7.07(a) or (b) but rather is filed in response to a

certified letter from the Advertising Review Committee. . . . Each ad

or writing must be filed separately .

(Emphasis added).

Izen, in his late-filed application for review, did not address www.joeizen.com

or www.divorceintexas.net, but only addressed the Brady advertisement. Izen has

not produced any evidence that the Committee ever offered any administrative

review of the two websites that were undisputedly not mentioned in the letter, nor

in Izen's response to the letter. For www.divorceintexas.net, the jury found Izen

violated Rules 7.01(a), 7.01(e), 7.04(b)(3), 7.04(j), and 7.07(b). For

www.joeizen.com, the jury found Izen violated Rules 7.02(a) and 7.04(b)(3). No

evidence shows Izen's due process rights were violated with respect to the

www.divorceintexas.net website or the www.joeizen.com website. After excluding

all Part 7 violations by the Brady advertisement, the judgment can be he upheld by

the eight independent violations of the Rules. See Cluck , 214 S.W.3d at 739 ; see

also Britton , 95 S.W.3d at 681 .

C. Policy of Committee

Within his brief, Izen suggests that the Commission's pursuit of all three

advertisements violated his due process rights because he believed the Committee

would informally resolve any violations in the advertisements. He states that the

"record in this case as well as the Committee's official publications and seminars

which are subject to judicial notice by this Court . . . establish that the Committee

had a policy of allowing attorneys to resolve problems informally." This statement

is not contained within the argument section of Izen's first issue concerning due

process. Rather, this statement is found within Izen's issue two concerning a conflict

in the jury's answers. Specifically, it is part of Izen's argument asserting the jury's

answers to Question 9 should be disregarded.

Texas Rule of Appellate Procedure 38.1(i) requires that an appellant's brief

"contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record." Tex. R. App. P. 38.1(i). "Rule 38 requires

[a party] to provide us with such discussion of the facts and the authorities relied

upon as may be requisite to maintain the point at issue." Tesoro Petroleum Corp. v.

Nabors Drilling USA, Inc. , 106 S.W.3d 118, 128 (Tex. App.--Houston [1st Dist.]

2002, pet. denied). "This is not done by merely uttering brief conclusory statements,

unsupported by legal citations." Id. "Issues on appeal are waived if an appellant

fails to support his contention by citations to appropriate authority . . . ." Abdelnour

v. Mid Nat'l Holdings, Inc. , 190 S.W.3d 237, 241 (Tex. App.--Houston [1st Dist.]

2006, no pet.); see Daniel v. Falcon Interest Realty Corp. , 190 S.W.3d 177, 189

(Tex. App.--Houston [1st Dist.] 2005, no pet.). Similarly, appellate issues are

waived when the brief fails to contain a clear argument for the contentions made.

See Brock v. Sutker , 215 S.W.3d 927, 929 (Tex. App.--Dallas 2007, no pet.)

(holding issue is waived by brief that makes no attempt to analyze trial court's order

within context of cited authority).

Izen does not identify any portion of the record that contains the "Committee's

official publications and seminars" nor does he identify a request for the trial court

to take judicial notice of the publications and seminars. This single conclusory

statement without citation to the record or to relevant authority is insufficient to

preserve this issue for appeal. Izen has waived any issue concerning the

Committee's purported policy to resolve problems informally. See Tesoro Petroleum

Corp. , 106 S.W.3d at 128 ; see also Abdelnour , 190 S.W.3d at 241 .

D. The Dissenting Opinion's Analysis of "Safe Harbor"

The dissent is premised, in part, upon the application of former Rule 7.07(c),

which a federal court interpreted as a "safe harbor" provision. See Texans Against

Censorship, Inc. v. State Bar of Texas , 888 F. Supp. 1328, 1367-68 (E.D. Tex.

1995). Rule 7.07(c) provides that a lawyer may seek advance approval of an

advertisement by filing for an advanced opinion concerning a proposed

advertisement. Tex. Disciplinary R. Prof'l Conduct 7.07(c). This Rule provides

a safe harbor for a lawyer by stating the Committee will review the advertisement

submitted in advance and that a finding of noncompliance is not binding in a

disciplinary proceeding, but a finding of compliance is binding in favor of the lawyer

seeking the advance opinion, provided the lawyer is truthful and not misleading in

the application for advanced review. Id. To take advantage of the safe harbor,

however, the lawyer must file the advertisement in question "not less than thirty (30)

days prior to the date of first dissemination." Id.

Here, it is undisputed that Izen did not file any of the three advertisements at

issue 30 days in advance of dissemination. Furthermore, Izen does not raise the

provisions of Rule 7.07(c) in his brief to this Court, and did not raise the Rule in the

trial court. The letter from the Committee is the only source of due process rights

Izen raises, and that letter expressly states that Izen failed to file the Brady

advertisement prior to its dissemination. Because the record undisputedly shows that

Izen did not ask for an advance opinion and he did not meet the filing requirements

for an advance opinion, Rule 7.07(c) is inapplicable to this case. Additionally,

neither Izen nor the Commission raised this issue of an advance opinion before the

trial court or this Court. Rule 7.07(c) is inapplicable to this case and, therefore, any

discussion of that matter is an improper advisory opinion. See VanDevender v.

Woods , 222 S.W.3d 430, 432-33 (Tex. 2007) (stating courts should not decide

constitutional issue not necessary to disposition of appeal, noting that any opinion

on such issue would be advisory) (citing, among other authority, Tex. R. App. P.

47.1); see also In re B.L.D. , 113 S.W.3d 340, 350 (Tex. 2003) (noting "[i]mportant

prudential considerations" require parties to raise complaints at trial before appellate

court will address them).

Sufficiency of Evidence

In his fifth issue, Izen contends the evidence is legally and factually

insufficient to support the jury's findings that he committed violations of the Rules.

Izen asserts neither he nor his assistant approved the final content of the Brady

advertisement; only books and legal forms were sold at the website

www.divorceintexas.net; the statement of opinion held by his clients as shown on the

website www.joeizen.com complied with the Rules; and the trade name "Texas

Legal Services Clinic" is not misleading. Other than these specific arguments, Izen

states generally that the evidence is legally and factually insufficient to uphold the

jury's answers to Questions 4, 5, 7, 8, 9, 11, and 12. Within his second issue, Izen

asserts the evidence is insufficient to support the jury's answers to Questions 1, 2,

and 3.

A. Standard of Review

"The final test for legal sufficiency must always be whether the evidence at

trial would enable reasonable and fair-minded people to reach the verdict under

review." City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005).

Legal-sufficiency review in the proper light must credit favorable evidence if

reasonable jurors could, and disregard contrary evidence unless reasonable jurors

could not. Id. If the evidence would enable reasonable and fair-minded people to

differ in their conclusions, then jurors must be allowed to do so. Id. at 822 . A

reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as

the evidence falls within this zone of reasonable disagreement. Id. Although the

reviewing court must consider evidence in the light most favorable to the verdict,

and indulge every reasonable inference that would support it, if the evidence allows

only one inference, neither jurors nor the reviewing court may disregard it. Id.

In determining factual sufficiency, this Court weighs all the evidence, both

supporting and conflicting, and may set the finding aside only if it is so contrary to

the overwhelming weight of the evidence as to be clearly wrong and manifestly

unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986); Comm'n of Contracts v.

Arriba Ltd. , 882 S.W.2d 576, 582 (Tex. App.--Houston [1st Dist.] 1994, no writ).

In an appeal from a bench trial, we may not invade the fact-finding role of the trial

court, who alone determines the credibility of the witnesses, the weight to give their

testimony, and whether to accept or reject all or any part of that testimony.

Nordstrom v. Nordstrom , 965 S.W.2d 575, 580-81 (Tex. App.--Houston [1st Dist.]

1997, pet denied).

B. Analysis

Having determined the trial court properly included the Rule 5.03 violation

for the Brady advertisement, the Part 7 violations for www.divorceintexas.net, and

the Part 7 violations for www.joizen.com, we address whether the evidence is legally

and factually sufficient to support any of these violations. Any one of the jury's

findings of violations of the Rules is sufficient to support the judgment of

suspension. See Cluck , 214 S.W.3d at 739 .

Question 9 asked the jury

Do you find by a preponderance of the evidence that Joe Alfred Izen

failed to file with the Lawyer Advertisement and Solicitation Review

Committee of the State Bar of Texas, either before or concurrently with

the dissemination of the advertisements that he placed and failed to file

a copy of each advertisement that he placed in the public media with

the Lawyer Advertisement and Solicitation Review Committee of the

State Bar of Texas?

The jury was instructed to answer "yes" or "no" separately for the Brady

advertisement, www.joizen.com, and www.divorceintexas.net. The jury answered

"yes" for each advertisement.

Within his fifth issue, Izen does not make any specific arguments concerning

Question 9. Furthermore, when testifying at trial, Izen stated he did not file a review

application for www.joeizen.com. We hold the evidence is legally and factually

sufficient to support the jury's finding concerning the failure to file a review

application for www.joeizen.com. This finding is sufficient to support the trial

court's judgment imposing a probated suspension on Izen. See Cluck , 214 S.W.3d

at 739 ; see also Britton , 95 S.W.3d at 681 . We therefore need not address the

sufficiency of the evidence to support the findings of other violations.

We overrule Izen's fifth issue.

Conflict in Jury's Answers

In his second issue, Izen contends, "the jury's answers to questions Nos. 1

through 12, upon proper resolution of any conflict, require entry of judgment in

favor of Respondent Izen or a new trial."

To preserve error that the jury's findings are inconsistent, the complaining

party must raise an objection in the trial court before the jury is discharged. Oyster

Creek Fin. Corp. v. Richwood Inv. II, Inc. , 176 S.W.3d 307, 324 (Tex.

App.--Houston [1st Dist.] 2004, pet. denied); see also Kennedy Ship & Repair, L.P.

v. Pham , 210 S.W.3d 11, 24 (Tex. App.--Houston [14th Dist.] 2006, no pet.).

Before discharging the jury, the trial court expressly asked, "Do the attorneys have

any other matter that you would like the Court to take up before I release the jury?"

Izen's counsel responded, "No, Your Honor." Almost 30 days after the jury was

discharged, Izen filed a motion challenging the lack of evidence to support certain

questions and identifying certain purported inconsistences. Izen failed to raise the

issue of an inconsistency or conflict in the jury's verdict prior to the jury's discharge,

and thus has not preserved this issue for appeal. See Oyster Creek Fin. Corp. , 176

S.W.3d at 324 ; see also Kennedy Ship & Repair, L.P. , 210 S.W.3d at 24 . We hold

Izen has waived his complaint. See Oyster Creek Fin. Corp. , 176 S.W.3d at 324 ; see

also Kennedy Ship & Repair, L.P. , 210 S.W.3d at 24 .

We overrule Izen's second issue.

Admission of Evidence

In his third issue, Izen asserts that the trial court erred in the admission and

exclusion of three types of evidence. First, Izen contends the trial court erred in its

"[e]rroneous exclusion of admissions as hearsay and denial of right to cross-examination of the Commission's expert." Izen explains that the court should have

allowed Izen to cross examine a Committee member with the member's prior

statements. Izen identifies evidence pertinent to his claim that the Part 7 violations

by the Brady advertisement should have been resolved administratively or

informally. Second, Izen asserts the trial court erred in its "[a]dmission of

incompetent expert testimony concerning the legal requirements of the Disciplinary

rules from a non-lawyer." Izen does not specifically point to any evidence and

challenges the witnesses generally. Izen explains the testimony was inadmissible

"legal opinion" testimony. Third, Izen contends the trial court erred in its

"[e]xclusion of relevant expert testimony." Izen explains that his proffered expert

testimony was relevant to the issue of Izen's standing in the legal community.

Izen has failed to show how any of this evidence is relevant to the factual issue

of whether Izen failed to file an application for review concerning www.joeizen.com,

which is an independent ground to uphold the trial court's judgment. See Cluck , 214

S.W.3d at 739 . It is undisputed from Izen's own testimony that he failed to comply

with the application requirements for www.joeizen.com. We hold any purported

error in the admission or exclusion of evidence is harmless because the evidence

pertains to alternative grounds that are unnecessary to support the judgment. See

Cluck , 214 S.W.3d at 739 ; Britton , 95 S.W.3d at 681 .

We overrule Izen's third issue.

Jury Charge

In his fourth issue, Izen asserts, "the trial court improperly charged the jury

and erred by granting a directed verdict against respondent Izen on his counter-claims and by refusing to submit any of Izen's required special issues." Izen

contends (A) Question 11 did not ask the jury to determine whether Izen or Sanchez

approved the contents of the Brady advertisement; (B) the trial court committed error

by refusing to submit any of Izen's requested jury instructions concerning Izen's

affirmative defenses and counterclaims; and (C) the trial court erred by overruling

Izen's vagueness objections to the charge.

A. Question 11

Having determined that the jury's finding in response to Question 9

concerning the lack of a review application for www.joeizen.com is sufficient to

support the judgment, we hold that the error, if any, in the submission of Question

11 is harmless. See Cluck , 214 S.W.3d at 739 .

We overrule this portion of Izen's fourth issue.

B. Denial of Izen's Requested Instructions

Izen states, "The Court committed error by refusing to submit any of Izen's

requested jury instructions." Izen's argument on this portion of his fourth issue

states,

Evidence existed in the record which supported submission of Izen's

affirmative defenses and counter-claims for selective prosecution,

violation of administrative due process, arbitrary, capricious and

unreasonable action, restraint of trade, vagueness, failure to exhaust

administrative remedies, invidious discrimination, violation of civil

rights, and first amendment retaliation. By failing to submit these

issues, the Court improperly granted a directed verdict on Izen's

counter-claims and affirmative defenses and improperly charged the

jury in violation of numerous authorities.

"The court shall submit such instructions and definitions as shall be proper to

enable the jury to render a verdict." Tex. R. Civ. P. 277. "The court shall submit the

questions, instructions and definitions in the form provided by Rule 277, which are

raised by the written pleadings and the evidence." Tex. R. Civ. P. 278. "Failure to

submit a definition or instruction shall not be deemed a ground for reversal of the

judgment unless a substantially correct definition or instruction has been requested

in writing and tendered by the party complaining of the judgment." Tex. R. Civ. P.

278.

Texas Rule of Appellate Procedure 38.1(i) requires that an appellant's brief

"contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record." Tex. R. App. P. 38.1(i). As noted above,

this requires a party to provide us with a discussion of the facts and relevant

authorities. See Tesoro Petroleum Corp. , 106 S.W.3d at 128 . Conclusory

statements, unsupported by legal citations, are not sufficient. See id.

Izen does not cite to any authority or to the record to support his bare assertion

that "[e]vidence existed in the record which supported submission" of any

counterclaim or affirmative defense. We hold Izen's brief is inadequate to present

any challenge to the failure to submit his requested instructions. See Tex. R. App.

P. 38.1(i); Tesoro Petroleum Corp. , 106 S.W.3d at 128 (stating "brief conclusory

statements, unsupported by legal citations" insufficient to present issue).

We overrule this portion of Izen's fourth issue.

C. Izen's Vagueness Objections to the Charge

Izen's entire argument concerning this issue states, "The Court erred by

overruling Izen's vagueness objections to the charge. See Ex Parte: Chernosky , 153

Tex. Crim. 52 (1949)." We hold this single conclusory sentence is inadequate to

present any challenge to the trial court's overruling of Izen's vagueness objection

because it fails to present any argument to explain why Izen believed the court's

ruling was in error. See Tex. R. App. P. 38.1(i); Tesoro Petroleum Corp. , 106

S.W.3d at 128 .

We overrule this portion of Izen's fourth issue.

Judicial Misconduct

In his sixth issue, Izen contends, "Judicial Misconduct (abandoning the jury

while the jury was deliberating) requires a new trial."

Izen cites no relevant authority to support his argument. In the "Scope of

Review" section of this issue, Izen states,

Whether a Judge has failed to properly supervise, or has

undersupervised, Court staff must be determined De Novo. In Re:

Rose, 144 S.W.3d 661 , 708 (Tex. Rev. Trib. 2004).

Although the clerk performs the physical act of record

keeping, the Judge is ultimately responsible for the

administration of his Court. See Rose at P.708. Citing In

Re: Quick, 553 So.2d 522, 525 (Miss. 1989).

However, the Rose case has nothing to do with the judge's presence during

deliberations and Izen does not attempt to explain how it applies to this case.

Izen also cites Gomez v. U.S. , 490 U.S. 858 , 109 S. Ct. 2237 (1989).

However, the holding in Gomez is that a federal magistrate may not conduct voir dire

in a felony case. Gomez , 490 U.S. at 872 , 109 S. Ct. at 2246 . The Supreme Court

also noted that a harmless-error analysis did not apply because a defendant has the

basic right "to have all critical stages of a criminal trial conducted by a person with

jurisdiction to preside." Id. at 876 , 109 S. Ct. at 2248 . The instant case is not a

criminal case and Izen does not complain about the trial court's actions during voir

dire. Izen provides no other explanation or argument concerning the applicability

of Gomez to this case.

We hold Izen's issue concerning the jury's deliberations while the judge was

outside of Harris County is waived due to inadequate briefing. See Tex. R. App. P.

38.1(i); Tesoro Petroleum Corp. , 106 S.W.3d at 128 ; see also Woodside v.

Woodside , 154 S.W.3d 688, 691 (Tex. App.--El Paso 2004, no pet.) (holding issue

waived when only authorities cited were "a few irrelevant cases and statutes").

Within this issue, Izen also appears to contend that the trial court's orders

issued while the judge was outside of Harris County were void. However, Izen does

not specifically identify or complain of any order. The only order mentioned in his

argument is the trial court's instruction to the bailiff to tell the jury to "leave, go

home, and return [the next day] at 9:00" when the judge would be present. Izen

contends the judge committed misconduct because, while outside of Harris County,

the judge allowed the jury to deliberate and instructed the jury to stop the

deliberation.

Within this section Izen cites In re Barber , 982 S.W.2d 364 (Tex. 1998). Izen

erroneously cites this case for the proposition that a person acting under the authority

of the judge could affix the judge's signature to a document using a rubber stamp if

it was done "under his immediate authority and direction and in his presence." See

Barber , 982 S.W.3d at 367. However, the Texas Supreme Court did away with the

requirement of the judge's presence. After noting that the judge's physical presence

could be unrealistic in certain circumstances, the Supreme Court stated, "We

therefore hold that a judge may sign a document by directing another person who is

under the judge's immediate authority to affix the judge's signature using a rubber

stamp." Id. Barber is inapplicable to jury deliberations. Furthermore, Izen does not

suggest that another person signed an order for the judge.

Izen also cites article five, section seven of the Texas Constitution which

provides, in relevant part, "The [District] Court shall conduct its proceedings at the

County Seat of the County in which the case is pending, except as otherwise

provided by law." Tex. Const. art. V, § 7. Case law interpreting article five has

stated, "[I]f the court renders judgment or issues an order while sitting outside the

county in which suit is pending, such judgment or order is void." Howell v. Mauzy ,

899 S.W.2d 690, 699 (Tex. App.--Austin 1994, writ denied). Izen has not shown

that the trial court conducted any proceedings outside of Harris County. The judge

was present in Harris County when she instructed the jury to return for jury

deliberations. While the judge was outside Harris County, the judge did not answer

the jury's question. Instead, the only action taken while the judge was outside of

Harris County was the ministerial action to tell the bailiff to send the jury home to

reconvene at a later date. The ministerial action is not a "proceeding," the issuance

of an "order," nor a "judgment." See id.

But assuming the trial court's instruction to the jury to cease its deliberations

and return the next day was void because the judge was not present in Harris County,

Izen does not explain or analyze how the trial court's action in halting the allegedly

improper jury deliberations has harmed him. As a logical matter, if the deliberations

were improper as asserted by Izen, the relief he sought was exactly what the trial

court granted--a stop to the deliberations until the judge was present in the county.

When the trial court judge had returned and before it received the jury's verdict, Izen

stated, "I have objections. . . . I believe that I can prove that the jury deliberated in

your absence; specifically I make the affirmative claim . . . ." At this point the trial

court judge interrupted Izen to state the jury had come in to deliberate and the jury

was told to leave and come back to deliberate the next day. Izen did not state the

legal basis for his objections and he did not ask for any relief from the court, such

as a mistrial. We hold that the error, if any, in the trial court stopping jury

deliberations until the judge was in Harris County was harmless. See Tex. R. App.

P. 44.1(a)(1) (stating court of appeals may not reverse for trial court's error unless

that error "probably caused the rendition of an improper judgment").

We overrule Izen's sixth issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Keyes, Alcala, and Hanks.

Justice Keyes, dissenting .

1. See Tex. Disciplinary R. Prof'l Conduct 5.03(b)(1), 7.01(a), 7.01(e), 7.02(a),

7.02(a)(2), 7.04(b)(3), 7.04(j), 7.07(b), and 7.04(e), reprinted in Tex. Gov't code

Ann., tit. 2, subtit. G app. A (Vernon 2005). The Rules cited are those in effect at the

time of Izen's violations. The Rules have since been amended. For clarity and

consistency, we refer to the former Rules as cited by the parties and recited in the

judgment.