
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.
