Austin Lawyer April 2024

2024-25 Austin Bar Board Candidates Announced

Electronic Ballots to Be Distributed Friday, April 26; Voting Will Close Friday, May 17

The Austin Bar’s Nominating Committee has released its slate of nominees for the 2024-25 board of directors.

The following candidates are running uncontested for officer positions:

PRESIDENT-ELECT:

Maitreya Tomlinson

Tomlinson is a board-certified civil appellate attorney and managing member of the Tomlinson Firm, PLLC. He currently serves as secretary of the Austin Bar Association. He has previously served as treasurer and on the board of directors.

SECRETARY:

Judge Maya Guerra Gamble

Judge Guerra Gamble was elected to the 459th District Court bench in 2018. She has recently been honored to be named a Courageous Judge by the National Conference of Judges.

She currently serves as the Austin Bar treasurer and co-chairs the Mentorship Committee. A previous chair of the Equity (now DEI) Committee, Judge Guerra Gamble oversaw the inaugural Equity Summit presented by the Austin Bar.

Judge Guerra Gamble is a native Austinite, graduate of Austin High School, Yale College, and Yale Law School. She is married with two children. She is a devoted Scouter and is planning to canoe the Boundary Waters in Canada for 10 days this

summer.

Her varied career prior to taking the bench included a solo practice representing children and parents in child protective services cases; representing whistleblowers at O’Connell & Soifer; prosecuting child pornography and child exploitation cases for the Texas Attorney General; suing companies committing fraud against the United States for the Department of Justice; and clerking for Judge Richard Cudahy on the 7th Circuit.

TREASURER:

Rob Frazer

A partner at Goranson Bain Ausley, Frazer is board-certified in family law and proud father of three. Frazer has been named among the Best Lawyers in America from 2019 to 2023 and was recognized as Outstanding Director by the Austin Bar Association for the 2021-22 bar year.

Mary-Ellen King, the 2023-24 president-elect, will assume the office of president on July 1, 2024.

PRESIDENT: Mary-Ellen King

King is an attorney practicing civil litigation nationwide with Thompson Coe LLP. She currently serves as president-elect of the Austin Bar Association. She has previously served as secretary, treasurer, and on the board of directors, as well as on the Austin Young Lawyers Association board of directors. King was awarded the President’s Award of Merit for 2022-2023, named Outstanding Director by the Austin Bar for 201920, and Outstanding Young Lawyer by AYLA in 2012. She also received AYLA’s President’s Award of Merit in 2013 and is a graduate of the Austin Bar/AYLA Leadership Academy. She served as chair of the Judicial Reception Committee from 2010 to 2014 and as co-chair of the Austin Bar Foundation Gala Committee from 2020 to 2024. The 2024 Gala raised more than $234,000—the most of any Austin Bar Foundation Gala.

King is a current Austin Bar Foundation Fellow and previous leader and member of the Solo/

Maitreya Tomlinson

Judge Maya Guerra Gamble Rob Frazer

Mary-Ellen King

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NEWS & ANNOUNCEMENTS

Registration for Bench Bar 2024 is now live! The conference will be held on May 17 at Kalahari Resorts in Round Rock. Visit the Events tab at austinbar.org to view the agenda and purchase tickets. Judges attend for free! Sponsorship opportunities are also available. Bring the family and enjoy the weekend by booking a room and purchasing waterpark passes! FOLLOW

instagram.com/theaustinbar

UPCOMING EVENTS

MAY 1

Administrative Law CLE

Noon – 1 p.m.

O’Melveny

303 Colorado St. Suite 2750

Lunch provided Register at austinbar.org

https://www.linkedin.com/ company/austin-bar-

AUSTIN BAR ASSOCIATION

Justice Chari Kelly President

Mary-Ellen King President-Elect

Maitreya Tomlinson Secretary

Judge Maya Guerra Gamble Treasurer

Amanda Arriaga Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION

Sarah Harp President

Emily Morris President-Elect

Jenna Malsbary Treasurer

Gracie Wood Shepherd Secretary

Blair Leake Immediate Past President

Austin Lawyer ©2024 Austin Bar Association; Austin Young Lawyers Association

Don’t Miss Bench Bar 2024!

Registration is now live for Bench Bar 2024 May 17, 2024, from 8:30 a.m. to 5:15 p.m. at Kalahari Resorts, 3001 Kalahari Blvd. Round Rock, TX 78665.

The conference has been approved for 5 CLE hours and 1.25 ethics hours

Sponsorship opportunities are also available. Go online to register at austinbar.org, where you can register as either an attendee with a sponsorship option or as an event sponsor only.

The Austin Bar has also reserved a room block at the Kalahari. The deadline to reserve a room is April 17. Visit https://book. passkey.com/event/50783077/ owner/50022711/home to access the room block.

Discounted waterpark passes are also available. Please email delaine@austinbar.org if you plan to purchase waterpark tickets, so that we can get the group discount.

SCHEDULE OF EVENTS:

8:30 – 9 a.m.

9 – 9:30 a.m.

9:30 – 10:15 a.m.

10:15 – 11 .a.m.

Registration and Vendor Fair

Icebreaker/Welcome and Introduction

Post-pandemic Practice in the Travis County District Courts

Judge Jan Soifer, Judge Laurie Eiserloh , Judge Brad Urrutia, Warren Vavra

Changes in Latitudes, Changes in Attitudes: How the pandemic and population shifts have changed juries in Travis County

Moderator: Karen Burgess

Judge Amy Clark Meachum, District Clerk Velva Price, Jane Frasier, Alison Tisdale

11 – 11:15 a.m. Break

11:15 a.m. – 12:15 a.m.

Navigating Legal Intersections: Practical Strategies to Competently Handle Issues from Other Practice Areas (0.25 ethics)

Judge Daniella DeSeta Lyttle, Judge Selena Alvarenga, Tonia Lucio

Kate Lincoln-Goldfinch, Linda Garza

12:15 – 12:45 p.m. Vendor Fair

12:30 p.m.

12:45 – 1:45 p.m.

1:45 – 2:15 p.m.

Lunch Served

A Family Affair: Lessons in Civility in Uncivil Time

Moderator: Judge Cliff Brown, Jami Turner, Scott Milner, Dan Richards

Clark Richards

You Can’t Handle the Truth: Winning Impeachment Strategies

Justice Chari Kelly, Judge Catherine Mauzy, Judge Jessica Mangrum, Rick Flores

2:15 – 2:45 p.m. Awards Presentation

2:45 – 4:15 p.m. Jungle Olympics

4:15 – 5:15 p.m.

5:15 p.m.

Main Character Syndrome: Ethics and Discovery Disputes (1.0 ethics)

Drew Harris, Erin Shinn Sreenivasan, Judge Brandy Mueller, Judge Maya Guerra Gamble, Judge Dustin Howell

Happy Hour/Portrait Unveiling

New Members

The Austin Bar welcomes the following new members:

Emilliam Calhoun

Jose Cantu

Angelica Chernin

Maya Dokic

Emma Edmund

Dogood Ekoh

Carmen Kyle

Dee Dee C. McKee

Clark Smith

Morgan Smith

KUDOS

Congratulations to Jackson

Walker’s Austin office, which had several attorneys included in the latest edition of Thomson Reuters’ Super Lawyers annual Top Women Attorneys publication:

Partner Marilyn M. Brown Brown’s practice focuses on the defense in civil litigation.

Associate Alyca Riley Garrison. Garrison’s practice focuses on employee benefits.

Partner Meghan Griffiths. Griffiths’ practice focuses on administrative law.

Partner Amanda Neinast

Nynast’s practice focuses on estate planning and probate.

Partner Kati Orso. Orso’s practice focuses on real estate.

Congratulations to Justice

Craig T. Enoch, retired Supreme Court justice, who received the Gregory S. Coleman Outstanding

Appellate Lawyer Award from the Texas Bar Foundation. The Coleman Award is given to an outstanding appellate lawyer who maintains a strong commitment to providing legal services for the underserved, along with dedication to mentoring young attorneys and a strong moral compass to guide both professional and personal pursuits.

Congratulations to Jessica Soos, who has joined Enoch Kever as senior counsel, working to expand the firm’s core Public Utility Commission of Texas (PUCT) regulatory services to the electric power generation industry. Jessica’s practice focuses on regulation, particularly in the electric power generation industry, helping clients evaluate legislative and regulatory constraints and opportunities on the electric markets. Jessica is a former PUCT regu-

lator, assistant attorney general representing the PUCT in Texas courts, and in representing clients as an advocate at the PUCT, the Electric Reliability Council of Texas, and the State Office of Administrative Hearings.

Congratulations to Zachary Wiewel of Texas Trust Law, PLLC, for being named a 2024 Rising Star by Super Lawyers. Wiewel is a graduate of Georgetown Law School and his practice focuses on estate planning and probate.

SUBMIT A BRIEF

If you are an Austin Bar member and you’ve moved, been promoted, hired an associate, taken on a partner, or received a promotion or award, we’d like to hear from you. Notices are printed at no cost, must be submitted in writing and are subject to editing.

Announcements should include all pertinent information, including firm name, address, and contact numbers. Send submissions along with a high-resolution head shot to Austin Lawyer managing editor Billy Huntsman at billy@austinbar.org. AL

TOP (L-R): Brown, Enoch, Garrison, Griffiths. BOTTOM (L-R): Neinast, Orso, Soos, Wiewel.

TLAP Stories of Recovery: Be Compassionate

Reprinted with permission from the Texas Lawyers’ Assistance Program (TLAP), this article was written by an anonymous author. TLAP offers confidential assistance for lawyers, law students, and judges struggling with substance use or mental health issues. Call or text TLAP at 1-800-343-8527 (TLAP) or find more information at tlaphelps.org.

Iwas diagnosed with major depressive disorder when I was six years old. During my first year of law school, I experienced a significant depressive episode that culminated in a suicide attempt.

Like most law students, school had always been easy for me. When I got to law school, I suddenly went from being a big fish in a small pond, to being in a tank full of sharks. I found it difficult to relate to my peers socially; I had trouble grasping the material, but I was afraid to say anything because I didn’t want to look dumb in front of them or feel like I didn’t belong there. I was so tired and felt so defeated that I didn’t want to do anything but sleep after class. In my mind, there was nobody at school I could comfortably call a friend. I felt completely inadequate, inferior, overwhelmed, and alone. My torts professor, without hyperbole, terrified me.

Before long, I couldn’t get myself out of bed. I didn’t do any of the reading. Nothing brought me any semblance of happiness. I lived in constant fear of being rejected, being a disappointment, being a failure. Soon I began to think it would be better if I wasn’t living at all.

In November of the fall semester, three weeks from our first final exam, I tried to take my own life. I spent the following two weeks in an inpatient psychiatric hospital, without access to my phone, the internet, my textbooks, or anything but the incomplete jigsaw

puzzles and blunt crayons in the hospital. I notified the school before I was admitted, but I didn’t tell any of my classmates, because I assumed they didn’t care.

When I was released and was able to access my phone again, it had exploded with messages from my classmates asking where I was, if I needed notes, if I was okay— that they missed having their friend in class and hoped I would return.

When I finished crying, I could not think of any better reply than to say what I wish I’d said months before: “I am not okay. I need help. Can you help me?” These men and women who I am still proud to call friends could not have been more supportive. With the help of therapy, medication, and what was suddenly an incredible support system, the rain started to clear and light slowly crept back into my life.

That summer, I received a letter from the law school: “I am very sorry to inform you that as of the end of the spring term, your GPA dropped below the required minimum. Pursuant to our academic standards, you are being

academically dismissed from the law school program.” That letter is hanging framed above my desk next to my law degree as I type this.

Given my hospitalization, the school gave me the greatest opportunity of my life: I was allowed to restart as a 1L with a clean slate.

As I sat in my second 1L orientation, I looked around and saw myself from a year ago in all of my new classmates. I resolved that I was going to be for them the person I needed the year prior—to make sure they each knew that they belonged and that at least

one person was their friend. The three years that followed were the greatest three years of my life, culminating in my graduating magna cum laude as president of our student bar association.

The most valuable thing that we as attorneys and law students can be for one another is compassionate. Ours is a competitive, antagonistic profession, but our lives can be made so much better by being able to be vulnerable with one another, be compassionate to our peers, and show one another love. AL

AYLA GUEST COLUMN

With spring on the horizon, you may be anxious to finally close out that case that has been following you around for years and to do a deep clean of your inbox to regain some storage space.

For Myra Clark Gaines, it took decades before her attorneys could consider her dispute a thing of the past. In fact, she was outlived by her legal battle. It was the 19th century, so email storage was not a concern, but equality for women was. This article covers the lengthiest civil litigation case in U.S. history. It lasted 57 years and involved drama and scandals intriguing enough to make for a great movie.

Different Times

To set the stage, Ms. Gaines’ case, or really her cases, arose when women’s rights were weak and nuanced.1 For instance, women had to rely on marital status to have standing through their husbands to bring their claims.2 Ms. Gaines also had to address during her legal battles whether she was the product of a legitimate marriage or if she was an “adulterous bastard.”3

The progression of the times is apparent from Ms. Gaines’ case history as the perspectives began to evolve. Part of the shift is attributed to how Ms. Gaines’ attorneys painted her image for the public and played on male sympathy in the courtroom.4 Given the media

BY ABIGAIL VENTRESS, VB PENA LAW

The Arduous Case of Myra Clark Gaines

attention Ms. Gaines received over the years, she is considered to have influenced women’s rights.5

Unfortunate Fortune

The legal battles came from a probate dispute. Ms. Gaines sought her inheritance from her extremely wealthy biological father, Daniel Clark, who was a successful businessman and congressman in New Orleans.6 Ms. Gaines claimed Daniel Clark amended his will prior to his death, leaving the bulk of his estate to Ms. Gaines and acknowledging her as his only daughter.7 Others who knew Daniel Clark supported Ms. Gaines’ claim.8 The problem was that this will was mysteriously missing or destroyed.9

Instead, the male executors of Daniel Clark’s estate (his business partners) probated the original will that left the bulk of his estate to his mother, for whom the executors had also somehow obtained power of attorney.10 Through their power of attorney, the executors proceeded to dispose of valuable estate assets.11

Ms. Gaines was a minor when Daniel Clark passed away, and she was entirely excluded from his estate by the executors.12 Eventually, through her first husband, Ms. Gaines was able to have standing to challenge the probate of the original will.13 After her first husband died, Ms. Gaines remarried and continued to pursue her claims.14

Extensive Issues

The mission to win Ms. Gaines her inheritance was flooded with problems that she did not cause. For instance, her parents’ scandalous affair was very much in the spotlight. Apparently, Ms. Gaines’ mother was already married when she secretly married Daniel Clark.15 The evidence included, among other things, a bigamy charge against Ms. Gaines’ mother’s first

husband.16 Although Ms. Gaines’ biological parents had split long before Daniel Clark’s death, this issue concerning the validity of their marriage got so much airtime because, at the time, it mattered to determine whether Ms. Gaines could inherit from the estate.17

To make matters more difficult, Ms. Gaines was mostly raised by another couple outside of Louisiana.18 While Daniel Clark provided financial support, she was said to pass as the other man’s daughter.19 Ms. Gaines remained unaware of her true paternity until she married her first husband, who happened to be an attorney, and she found a letter with the details when going through his papers.20 Consequently, Ms. Gaines’ first court appearance was not until 21 years after Daniel Clark’s death.21

The turning point in Ms. Gaines’ case was when the Louisiana Supreme Court ruled that the amended will should be admitted to probate (although it was never found) by reducing testimony of persons who knew Daniel Clark to writing, which U.S. courts treated as a binding decision.22 This ultimately devalued the argument about the legitimacy of Ms. Gaines’ existence.

Since Ms. Gaines had been specifically named and acknowledged in the newly admitted will,

the information was accepted as true, and the burden shifted to disprove her legitimacy.23 Defendants struggled to prove that Ms. Gaines’ parents’ marriage was done in bad faith.24 The estate Ms. Gaines stood to receive was valued at $35 million, and she was deemed by The New York Times “the wealthiest woman in America,” but unfortunately for Ms. Gaines, the problems did not end with the admission of the will.25

The gentlemen who disposed of the assets had made sales to buyers who were not thrilled to hand their purchases over to Ms. Gaines.26 As such, issues arose as to whether the buyers were bona fide purchasers or if they knew of Ms. Gaines’

UPCOMING EVENTS

TUESDAY, APRIL 9

Trust & Estate Law Basics

McGinnis Lochridge

1111 W. 6th St. Bldg B. Ste. 400

Noon – 1 p.m.

Lunch Sponsor: Veritext Register at ayla.org

SATURDAY, APRIL 11

Yoga & Mocktails

Hilgers House

712 W. 16th St.

5:30 – 7:30 p.m.

Sponsor: Bettac Advocacy & Mediation

Myra Clark Gaines sits for a portrait. Date unknown. Photo credit: Smithsonian Institution

claimed interest when the purchases were made.27 It is arguable that it was likely that the buyers knew because of the media attention surrounding her case, but the buyers may have had little faith in her legitimacy or success.28

Other issues involved property prices in New Orleans, which had spiked to six or seven times the normal value when some of the land sales were taking place.29

The city of New Orleans ended up acquiring some property that was originally part of Daniel Clark’s estate, and Ms. Gaines went after the city too.30

While Ms. Gaines claimed New Orleans owed her approximately $2 million for rent and revenues it had received from the property that ultimately belonged to her and for enabling occupants to keep her out of possession, the U.S. Supreme Court awarded $576,707.92, finding the claim was equitable and comparing it to subrogation.31

Part of the court’s analysis focused on the quality of the land roughly 50 years prior and improvements that had since been made.32 The court explained that, under these circumstances, the failure to recognize defect in title was technical, not moral.33

Lasting Legacy

After 57 years of lawsuits and appearing before the Louisiana Supreme Court a number of times and the U.S. Supreme Court 17 times, Ms. Gaines died in 1895 around the age of 80, before seeing the final resolution that came years later.34 By the time attorneys’ fees were paid, Ms. Gaines’ heirs were not left with much, but her case is remembered as being “the most remarkable in the records of its courts.”35 AL

ENDNOTES

1 Ross, Michael. Review of Notorious Woman: The Celebrated Case of Myra Clark Gaines, by Elizabeth Urban Alexander. 45 Am. J. Legal Hist. 336 (2001).

2 Id

3 Gaines v. Hennen, 65 U.S. 553, 564, (1860).

4 Ross, supra

5 Dunn, Katherine Jolliff. The New Orleans Woman Who Fought the Longest Court Battle in U.S. History. The Historic New Orleans Collection,

(May 15, 2020), https://www.hnoc. org/publications/first-draft/new-orleans-woman-who-fought-longestcourt-battle-us-history (last visited February 27, 2024).

6 Id

7 Hennen, 65 U.S. at 559.

8 Id

9 Id

10 Id. at 563-70; City of New Orleans v. Christmas, 131 U.S. 191, 192-3, (1889); Wegmann, Mary Ann. Myra

Clark Gaines Cases: “The Most Remarkable in the Records of its Courts.” New Orleans Historical, https://neworleanshistorical.org/items/show/799 (last accessed Feb. 27, 2024); “Myra Clark Gaines: The Longest-Running Civil Lawsuit in America: Myra’s Pre-Lawsuit Life,” The Law Library of Louisiana, https://lasc.libguides.com/c.

php?g=560377&p=3855217 (last accessed Feb. 27, 2024).

11 Id

12 Hennen, 65 U.S. at 558.

13 “Myra Clark Gaines: The Longest-Running Civil Lawsuit in America: Lawsuits,” The Law Library of Louisiana, https://lasc.libguides. com/c.php?g=560377&p=3855217 (last accessed Feb. 27, 2024).

14 Id

15 Id

16 Gaines v. Relf, 53 U.S. 472, 489 (1851).

17 Id. at 543; Hennen, 65 U.S. at 554.

18 City of New Orleans, 131 U.S. at 195.

19 Id.; Relf, 53 U.S. at 488.

20 City of New Orleans, 131 U.S. at 196-

2024-25 AYLA Board Candidates Announced

The following candidates are running for officer and director positions on the 2024-25 AYLA board.

The new board will take office on July 1, 2024, along with Emily Morris, who will serve as AYLA’s 2024-25 president. Morris has been on AYLA’s board since 2019 and has served as secretary, treasurer, and president-elect.

Electronic ballots will be sent to members on Friday, April 26, and will close on Friday, May 17 at 4 p.m.

The following candidates are running uncontested for officer positions:

PRESIDENT-ELECT: Jenna Malsbary

It would be an honor to serve on the AYLA executive board as president-elect. I was a director for four years, am the current treasurer, and have worked on the Community Service, Membership, Pro Bono, Holiday Program,

Tailgate, ABA Equity, and the MLK Day of Service committees.

TREASURER:

Gracie Wood Shepherd

I work at Friday Milner Lambert Turner, where I practice family law and appeals. I have served on the AYLA board as a director from 2021 to 2023 and as secretary in 2023-24. I was in the Austin Bar/ AYLA Leadership Academy class of 2019 and am currently serving as co-chair for the Academy.

SECRETARY:

Lena Proft

I’ve been involved in AYLA since 2018. I’ve served as the government liaison, a director, and co-founded the Health and Wellness Committee. I am passionate about community service and lawyer wellbeing. I want to continue my service

to AYLA and the bar by serving as the next AYLA secretary.

Current AYLA President-Elect

Emily Morris will assume office on July 1 She has been on AYLA’s board since 2019 and has served as secretary, treasurer, and president-elect. She works as corporate counsel at PowerSchool.

The following candidates are running for four available director positions, each with a two-year term:

John Boone

I am an Austin family law attorney. I have been a member of AYLA since 2021. I have served as a committee co-chair and am a graduate of the 2023 Leadership Academy. As an AYLA director, I will encourage and foster community involvement and engagement.

Alex Conant

I want to be a director because of how much AYLA helped me during my career. I started participating immediately out of law school, and AYLA provided a lot of important support in my early career. As a result of that, I am a founding member of the Freshquires Committee, which focuses on first- to third-year lawyers and helping them in their early careers.

Roslyn Dubberstein

I practice administrative and utility law at Lloyd Gosselink. In my spare time, I like to cook and spend time outside with my

fiancé, Calvin, and our spunky 12-year-old pup, Penny. I would love to support the Austin legal community by contributing new ideas and building camaraderie.

Amy Rodriguez

I am an associate at the Austin office of Leland Shaffer LLP. I practice civil litigation and have extensive experience in environmental and regulatory law. I am the treasurer for the Hispanic Bar Association of Austin and on the board of the HBAA Charitable Foundation.

Jasleen Shokar

I practice healthcare litigation as an associate attorney at Turek Law Firm PC. I attended UT Austin and St. Mary’s Law. I’ve been an AYLA member since 2022 and served on the Austin Bar’s Gala Committee. I currently chair the executive committee for the Austin Bar/AYLA Leadership Academy as project lead.

Abigail Ventress

I became a member of AYLA soon after I moved to the Austin area. I practice civil litigation and appeals, representing both plaintiffs and defendants. I’m proud to work for a firm that encourages these opportunities, and I’m hoping to become an involved leader in AYLA. A

Arielle Rosvall, Coleen Kinsler partners: associate attorneys:

Senior District Judge

Stephen Yelenosky

The following are summaries of opinions issued by the Fifth Circuit in February 2024. The summaries are overviews of particular aspects of the opinions; please review the entire opinions.

STATUTE OF LIMITATIONS:

Contractual limitations provision barred federal employment discrimination claim.

Harris v. FedEx Corp. Servs., Inc., 92 F.4th 286 (5th Cir. 2024).

FedEx hired Harris as an account executive in sales. Her employment contract included a “Limitation Provision,” providing that “[t]o the extent the law allows an employee to bring legal action against the Company, [Harris] agrees to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of [her] lawsuit, whichever expires first.”

FedEx terminated Harris—allegedly for poor performance—on Jan. 8, 2020. Harris sued FedEx 17 months later, bringing a claim for employment discrimination and retaliation under 42 U.S.C. § 1981. Section 1981 has no express statute of limitations, so usually the relevant state law’s statute of limitations applies.

Relying on the limitations provision, FedEx moved for summary judgment on Harris’s § 1981 claim.

To be enforceable, a contractual limitations period must be reasonable. The district court denied summary judgment, finding that six months was unreasonably short.

During and after trial, FedEx moved for judgment as a matter of law on the same ground, which the district court again denied but for a new reason: The limitations period applied to only breach-ofcontract claims.

The jury found for Harris and awarded her $365 million in punitive damages in her § 1981 claim. FedEx appealed.

The Fifth Circuit reversed judgment on Harris’s § 1981 claim, concluding that the limitations provision barred her claim.

The Court first held that the limitations provision was not limited to contract claims and applied to Harris’s § 1981 claim. The Court reasoned that the plain meaning of the limitations clause—particularly, “to the extent the law allows”—was broad enough to encompass an employment discrimination claim.

The Court also rejected Harris’s argument that she did not knowingly and voluntarily accept the limitation provision because it was in small, hard-to-read print, she did not remember reading the provision, and no one pointed it out to her. Under Texas law, the Court explained, parties to a contract have an obligation to protect themselves by reading what they sign.

Finally, the Court rejected Harris’s reasonableness challenge. Harris relied on a Supreme Court decision rejecting application of a state statute of limitations for administrative complaints by state employees to § 1981 claims. The Court distinguished that decision because it was not applying the reasonableness test that governs contractual limitations provisions. Relying on precedent from other courts, the Court held that a six-month period is not inherently unreasonable because such a period is prescribed in various other federal laws.

DISCOVERY: Legislative privilege barred discovery of documents shared, and communica-

tions made, between legislators and non-legislators.

La Union del Pueblo Entero v. Abbott, No. 23-50201, 2024 WL 655988 (5th Cir. 2024).

In 2021, the Texas Legislature enacted SB 1, relating to “voter registration, voting by mail, poll watchers, and other aspects of election integrity and security.”

Plaintiff La Union del Pueblo Entero (LUPE) sued the State and several officials, challenging SB 1 under the Voting Rights Act—alleging that SB 1 chills voter registration—and the 14th Amendment—alleging that SB 1 was enacted with an intent to discriminate against racial minorities.

The Harris County Republican Party (HCRP) intervened as a defendant. Upon that intervention, LUPE sought documents and communications that HCRP had sent to or exchanged with the Texas Legislature.

HCRP designated Alan Vera, the chair of the HCRP Ballot Security Committee, as its document custodian. During his deposition, Vera testified that he had communicated on behalf of HCRP with legislators and legislative staff regarding SB 1. Vera asserted legislative privilege and declined to testify when the scope of the question potentially encompassed Vera’s communications with the legislators or legislative staff in response to a legislative inquiry. Vera also testified that he held potentially privileged documents on his personal email and personal computer.

LUPE held Vera’s deposition open and moved to compel production of those documents and to compel Vera to answer LUPE’s questions about communications with legislators and legislative staff. The district court rejected Vera’s assertion of legislative privilege and granted the motion to compel. Non-party legislators appealed.

The Fifth Circuit reversed, holding that legislative privilege precluded disclosure.

First, the Court held that the legislators had standing to appeal the motion to compel Vera because the Legislators have (1) been litigating legislative privilege

over the documents in related cases, (2) no other mechanism to vindicate their potentially meritorious claims of legislative privilege, and (3) a personal stake in the outcome. On the last point, the Court rejected LUPE’s argument that the legislators surrendered any interest in the confidentiality of these documents when they shared them with private parties.

Similarly, the Court held that the district court’s order was an immediately appealable collateral order—rejecting LUPE’s attempt to distinguish precedent based on the fact the order compelled a private party to produce documents rather than legislators. The court also held that that Vera was able to invoke legislative privilege on the legislators’ behalf.

The Court rejected LUPE’s various arguments and held that legislative privilege precluded disclosure based on the same line of reasoning: According to the Court, legislative privilege is necessarily broad, covering all aspects of the legislative process. The privilege extends to material provided by or to third parties involved in the legislative process because all of those actions occur within the regular course of the legislative process. By communicating with HCRP about legislation, the legislators brought Vera into the legislative process to conduct legitimate legislative acts.

Finally, the Court held that LUPE’s claims did not present an “extraordinary instance” in which legislative privilege yields. The Court reasoned that only those claims sharing attributes of federal criminal charges are sufficient. AL

Jason LaFond is a board-certified appellate lawyer with significant experience before the Fifth Circuit. He is a Senior Counsel at Yetter Coleman, LLP.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during February 2024. The summaries are overviews; please review the entire opinions. Subsequent histories are current as of March 11, 2024.

ATTORNEY’S FEES: Court reverses order denying attorney’s fees.

Abira Med. Laboratories, LLV v. OMH-Healthedge Holdings, Inc., No. 03-22-00176-CV (Tex. App.— Austin Feb. 13, 2024, no pet. h.) (mem. op.).

The trial court granted summary judgment for Omega on its breach-of-contract claim and ordered recovery of attorney’s fees in an amount to be determined by

the court or agreement of the parties. When no agreement could be reached, Omega filed a motion to modify to include attorney’s fees and attached supporting evidence. The trial court denied the motion because Omega did not include attorney’s-fees evidence with its motion for summary judgment. The court of appeals observed that because the summary judgment was interlocutory, Omega could present such evidence later. Because Omega’s motion to modify included attorney’s-fees evidence, under TCPRC § 38.001, the trial court had no discretion but to award fees.

The court affirmed in part and reversed and remanded for a calculation of attorney’s fees.

NEGLIGENCE: Court reverses denial of vicarious liability theory.

Cook v. Texas Highway Walls, LLC, No. 03-22-00736-CV (Tex. App.—Austin Feb. 16, 2024, no pet. h.) (mem. op.).

Cook sued Texas Highway Walls (THW), alleging vicarious liability following a car accident with Cervenka, a part owner of THW. The trial court granted summary judgment for THW. The court of appeals noted that vicarious liability turns on the actions of an agent, not the status as an employee. As part owner, Cervenka was in a position through which THW could be liable for his actions taken in the furtherance of the business. When the accident occurred, Cervenka was driving toward two THW job sites. Cervenka’s phone

records indicated that before the accident he was on a work-related call. Thus, the evidence raised a fact issue on whether Cervenka was acting as THW’s agent when the accident occurred.

The court reversed in part and affirmed in part. The dissent applied the equal-inference rule and concluded Cook failed to raise a fact issue on agency.

ORIGINAL PROCEEDING:

Court grants relief where trial court denied leave to designate responsible third parties.

In re Rancho del Lago, Inc., No. 03-23-00307-CV (Tex. App.—Austin Feb. 23, 2024, orig. proceeding) (mem. op.).

Three years after closing on a real-estate purchase, Potranco sued Rancho for breach of contract relating to payment of utility credits assigned to the property. Rancho sought to name the professionals who assisted Potranco as responsible third parties. The trial court denied the motion to designate. The court of appeals observed that the operative limitations period is the period that would apply to plaintiff’s cause of action against the third parties, here the two-year limitations in TCPRC § 16.003(a). The legal injury occurred on the date the transaction closed. Potranco did not sue Rancho until after limitations had run.

Accordingly, the court held that any subsequent designation of responsible third parties could not be untimely. The court granted relief.

REAL PROPERTY: Court affirms judgment finding no breach of restrictive covenants.

Travis Settlement Home-Owners’ Assoc. v. 71 Warehouse, LLC, No. 03-23-00108-CV (Tex. App.— Austin Feb. 22, 2024, no pet. h.) (mem. op.).

HOA declarations restricted property use that created a noise nuisance and barred operation of commercial kennels in the subdivision. 71 Warehouse requested a variance on behalf of a potential tenant who wanted to operate a dog-boarding business on its property. HOA approved the variance to operate a 100-dog facility with a small, sound-controlled area. Neighbors complained of the noise and HOA sued 71 Warehouse. The trial court concluded HOA failed to establish a breach of the restrictive covenants where the evidence established that HOA considered and understood the dog-barking noise as part of its approval of the variance.

The court of appeals deferred to the findings of fact and implied findings and affirmed. AL

Laurie Ratliff is a former staff attorney for the Third Court of Appeals. She is board-certified in civil appellate law by the Texas Board of Legal Specialization and owner of Laurie Ratliff LLC.

The following are summaries of selected criminal opinions issued by the Third Court of Appeals from August 2023. The summaries are overviews; please review the entire opinions. Subsequent histories are current as of March 1, 2024.

DEFENSIVE INSTRUCTIONS

– CONSENT: Trial court did not err in failing to include additional factual detail in defensive instructions.

Poncio v. State, No. 03-22-00292CR (Tex. App.—Austin Sep. 21, 2023, no pet.) (mem. op., not designated for publication).

Poncio was charged with assaulting his then-girlfriend. The assault occurred during an argu-

ment in a car. After Poncio motioned like he would hit her, his girlfriend said, “Hit me. I dare you.” He then hit her. The application paragraph of the court’s charge included an instruction on the defense of consent. The jury nevertheless found Poncio guilty of assault.

On appeal, Poncio argued that the charge failed to include additional language asking whether the girlfriend consented “when she told the defendant to hit her.” The court rejected this contention. The court explained that “[a] jury charge that tracks the language of a particular statute is a proper charge.” In this case, “the consent application paragraph tracked the language of the consent as defense to assaultive conduct statute.” Moreover, “the application paragraph tracked the Texas Pattern Jury Charge” on consent, and the Texas Pattern Jury Charges, although not the law, “are heavily relied upon by both the bench and bar” in determining what the charge should contain. Thus, the court concluded that the charge was not erroneous.

HABEAS CORPUS – ATTORNEY AFFIDAVITS: Trial court did not abuse discretion in failing to require trial counsel to submit affidavit for use in appellant’s habeas application.

Ex parte Demirs, No. 03-2300228-CR (Tex. App.—Austin Sep. 22, 2023, pet. ref’d) (mem. op., not designated for publication).

Demirs was convicted of criminal mischief. After his conviction was affirmed on appeal, Demirs filed an application for writ of habeas corpus, asserting that his trial counsel provided ineffective assistance. Demirs also filed a motion to order his trial counsel to submit an affidavit explaining the reasons he made certain decisions during trial. The trial court denied both the application and the motion.

On appeal, in addition to arguing the merits of his ineffective-assistance claims, Demirs asserted that the trial court erred by refusing to order his trial attorney to file an affidavit. The appellate court rejected this contention. The court explained that in a habeas proceeding, a trial court may order that affidavits be prepared and filed but that it is not required to do so. Instead, the trial court has “discretion to determine what is necessary to make its determination” on the merits of the habeas claims. In this case, the State had informed the trial court that the appellate court had previously rejected the legal basis of applicant’s ineffective-assistance claims.

In light of that rejection, the trial court could have reasonably determined that “it was unnecessary to order trial counsel to submit an affidavit.”

DEFENSIVE INSTRUCTIONS

– DEFENSE OF THIRD PERSON: In prosecution for murder, trial court did not err by refusing to instruct jury on defense of a third person.

Vickers v. State, No. 03-2100497-CR (Tex. App.—Austin Sep. 28, 2023, no pet.) (mem. op., not designated for publication).

Vickers was convicted of murdering Goodrow. The evidence showed that prior to the killing, Goodrow was acting aggressively with guests at a party. Vickers, who was also in attendance at the party, twice ran into Goodrow with his car, killing him.

On appeal, Vickers argued that he was entitled to a jury instruction on defense of a third person because, in his view, the evidence supported a reasonable belief that deadly force was immediately necessary to protect one of the guests at the party whom, according to one witness, Goodrow had choked. The court disagreed, concluding that although there was some evidence to support a finding that Goodrow was violent at the party, there was no evidence to support a finding that Goodrow “was being unlawfully violent with [the guest] at the moment that [Vickers] engaged the car to run over Goodrow” or that Goodrow was choking that guest. The court explained that the witness who testified that Goodrow was choking the guest had heard “a gurgling noise” but “could not see what, if anything, was transpiring between the two men.” Thus, although there was some evidence that one of the men was choking the other, “there [was] no evidence to support the element of the requested defense that intervention was necessary to protect” the guest from being choked by Goodrow. AL

Zak Hall is a staff attorney for the Third Court of Appeals. The summaries that follow represent the views of the author alone and do not reflect the views of the court or any of the individual Justices on the court.

Apply Now! Austin Bar Foundation Grant Applications Due May 1

Applications for grants from the Austin Bar Foundation are now open! Applications are available at austinbar.org and will be accepted until May 1 at 4 p.m.

This round of grants will prioritize DEI-related services that facilitate and expand the availability of legal services; improve the administration of justice and the Travis County court system; promote public understanding of the law; and/or provide assistance to lawyers in need.

Eligible applicants are legal aid and/or public-interest nonprofits that provide DEI-related services within Central Texas. Funding may be provided for start-up projects or ongoing program support. Grants are generally between $2,500 and $5,000. The Foundation will not commit in advance to fund a grant application for the same project on an ongoing annual basis or for a multi-year term.

Grants will not be made to organizations that are not 501(c)(3) organizations; to religious, political, propagandistic, or lobbying organizations; to organizations whose primary function is allocating funds to other organizations or projects; to projects outside of Central Texas; as loans; for the establishment or addition to endowments; for fundraising events; to fund operating expenses, unless such expenses directly support a proposed project; or for personal or entrepreneurial projects.

Recipients are required to recognize the Foundation on any printed or visual materials used in conjunction with the grant, by including the language: “This project was made possible through a grant from the Austin Bar Foundation.” The Foundation requests copies of written materials to reprint, as well as photos and video clips with permission to use.

All recipients must submit a report and accounting to the Foundation within one year, which should identify specific uses of the awarded funds and overall results of the project.

Proposals should be between two and five pages and should include the following:

• Summarize the organization’s history and state its mission and goals.

• Outline current programs and activities.

• Highlight organizational accomplishments.

• Does the organization have any office/branch/affiliate/ parent/program/etc. outside Travis County? If so, indicate what percentage of funding comes from outside and whether any funds raised in Travis County are used to support programs or defray expenses elsewhere.

• Describe the proposed program or project.

• Identify the needs, problems, and/or opportunities to be

addressed; challenges to the project; and anyone else in the area addressing the issue.

• Identify the target population/geographic community served, how they will benefit, and how you will reach them.

• Explain how the project contributes to and/or impacts

the community. State the project’s goals and describe the methods you will use to achieve them.

• Outline the key staff and volunteers’ qualifications and experience critical to the project.

• Identify other organizations and/or partners participating in the project and their roles.

• Provide a timetable for the project; identify long-term funding resources and outline how the project will be sustained. AL

“Civility and Professionalism: The Eras Tour”

Join Colleagues for a FREE Half-Day Virtual CLE (with Ethics Credit!)

Are you a little “lavender hazed” on the ethical rules around discovery, attorney-client privilege, or handling high-profile cases?

“Shake it off” and join us on April 19 at 9 a.m. for a free half-day virtual CLE, including three hours of ethics, hosted by the Robert W. Calvert American Inn of Court and the Austin Bar.

The Preamble to the Texas Disciplinary Rules of Professional Conduct states:

Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

Learn about:

• Conducting ethical discovery, with speakers

Judge Laurie Eiserloh, Stepahnie Rojo, and Judge Bianca Garcia, moderated by Leslie Dippel;

• Ethical client communications, with speakers Rick Cofer, Nikki Maples, and Sara Schaeffer, moderated by Laura Faber; and

• Media access in the courtroom, with speakers

Judge Dayna Blazey, Tom Jacob, and Judge Maria Cantu Hexsel, moderated by Nadia Bettac.

Modeling ethical, professional, and civil practices are core principles of both the Calvert Inn and the Austin Bar.

The event is open to all Austin-area attorneys. Registration information will be in an upcoming

edition of Bar Code and can also be found online at austinbar.org.

Don’t be an “anti-hero” of ethics. Please join us! AL

Lawyers Urged to Defend Constitution, Democracy

Richard Pena’s NBCP Award Ceremony Remarks Include Call to Action

At the National Conference of Bar Presidents (NCBP) Awards luncheon on Feb. 2, 2024, former Austin Bar and State Bar of Texas president Richard Pena was presented with the prestigious 2024 NCBP Fellows Award. Pena is the first Austin Bar president and only the second bar president from Texas to receive this prestigious award.

After receiving the award, Pena addressed the room full of bar association presidents and leaders from throughout the country. His remarks, reproduced below, received a standing ovation.

Thank you, Madam President, for the generous introduction, and thank you to NCBP for this honor. It is a pleasure being with you today in Louisville, Ky.

Every generation of bar leaders has unique challenges. But no challenges have been as important and consequential as those being faced by bar leaders and lawyers today.

These are difficult times for our country. Our institutions are under assault. Our country is be -

ing subjected to attacks on voting rights, free speech, our legal system, prosecutors, judges, books, history, and even attacks against the truth.

However, the greatest attacks of all are the attacks against our Constitution and Democracy. Make no mistake, these attacks are real and they are a clear and present danger to our way of life.

[The] Brookings [Institution] warned earlier this year that American Democracy “is under assault.” Brookings points to the recent wave of voter suppression laws across the country and the Jan. 6 insurrection, as well as other coordinated efforts to overturn the 2020 election.

In the American Bar Association’s (ABA) World Justice Project 2021 Rule of Law Index, the United States declined in standing. The International Institute for Democracy and Electoral Assistance states that the United States is identified as a democracy that is backsliding. Some legal experts and historians feel that today the preservation of our democracy is at stake.

I was recently watching televi-

sion and watched as an American citizen at a political rally stated that he would be fine with a dictatorship. He went on and said that was what America needed. It was shocking to me that an American citizen would think that. The other side of democracy is autocracy and dictatorship.

To many people, autocracy is just a word. To me autocracy is not just a word. It represents a very dark and evil form of government.

I have led more than 20 legal delegations to other countries. I have seen autocracies in action and no one, especially lawyers, is safe in such governments. I have been in Russia and China where lawyers are put in jail for representing dissidents and where trials are a sham and the results predetermined.

solidation of power was starting to take place and Prime Minister Erdogan was cracking down on perceived threats to his rule.

Lawyers were at the top of this list. During our visit I met with the president and board members of the Istanbul Bar Association. They proceeded to tell me that they were going on trial in several weeks and were facing two to four years in prison and disbarment. The reason was that they stood up in open court and asked the judge to permit a defendant in a high-profile case a fair trial. The next day they were charged with attempting to influence a member of the judiciary.

The Chinese government told me and my delegation that we could not meet with lawyers or Tibetan monks, and if we still went, we would be closely watched. In spite of this warning, we went and, indeed, had a government intelligence officer following us. Cameras and microphones are everywhere trying to capture anything that is deemed disloyal to the government. Our delegation had to meet with representatives of the American embassy in our hotel as they told us the American embassy was bugged. These are samples of how autocracies operate. But there are brave lawyers who continue to advocate for a semblance of the rule of law in spite of safety concerns.

In 2013, I led a delegation of Texas and U.S. lawyers to Turkey. Today, Turkey is an autocracy operating as a democracy. Criticism and dissent are considered a crime, the law is used as a means of oppression, and political and human rights are severely restricted. It wasn’t always that way. But their democracy gave way to the current autocracy when the political party in power felt it would lose power in a free and fair election. We went when the con-

This was but a long line of attempts of the government to intimidate and silence lawyers. We were told that lawyers in Turkey were being detained and arrested because they were fulfilling their duties to their clients. It was not unusual for lawyers who dared to stand up for the rights of their clients, fair trials, and the rule of law to be detained, prosecuted, and imprisoned. When I asked a bar president why lawyers continued to stand up and be detained or imprisoned, he said, “Because we are lawyers.”

The transition from democracy to autocracy has happened in other countries. Could it happen here? The answer is yes. The ABA also thinks so. Consequently, ABA President Mary Smith has created the blue-ribbon Task Force for American Democracy.

Make no mistake, this threat is real and as lawyers and bar leaders, we have a duty to support and defend the Constitution. As we go forward in this year, every lawyer should take steps to do something in this regard.

John F. Kennedy, in his 1961 inauguration speech, said that the torch had been passed to a new generation of Americans. Today, the torch has been passed to this generation of lawyers and bar leaders to defend our Constitution and help save our democracy.

Travis County Women Lawyers’ Foundation to Award Approximately $90,000 in Grants

The Travis County Women Lawyers’ Foundation (TCWLF) will award approximately $90,000 in grants this year to local nonprofit organizations that provide legal services to women, children, and families.

The grants will be awarded at TCWLF’s annual Grants & Awards Luncheon, co-hosted by the Travis County Women Lawyers’ Association (TCWLA).

This year’s luncheon will take place on Friday, April 26.

TCWLA will also present attorney awards at the luncheon, recognizing women attorneys who have made significant “low-profile” contributions in the Travis County legal community. The awards to be presented are:

• The Public Interest Award

• The Contribution to a Minority Community Award

• The Advancement of Women’s Interests Award

• The Government Service Award

• The Pro Bono Award

• The Litigation/Appellate Award

• The Corporate/Transactional Award

• The Criminal Justice Award

• The Firm/Organization/Government Entity Award

• The Outstanding Achievement Award

• The President’s Award

The luncheon will feature Shuronda Robinson as keynote speaker. Robinson is the CEO of Austin Woman magazine. A special welcome by Austin Mayor Kirk Watson will precede the keynote presentation.

Tickets and sponsorship opportunities are available at tcwla.org or by scanning the QR code in the graphic to the right of this article.

TCWLA has given grants to nonprofit organizations protecting the legal rights of women and children since 1991. In 2002, TCWLA formed TCWLF to serve as its official fundraising and grant-awarding arm.

TCWLF is a 501(c)(3) non-profit corporation. Its purpose is to support, promote, and encourage activities for the furtherance of justice and equal opportunity for women, families, and children.

In its 22 years of existence, TCWLF has experienced tremendous growth. Before 2007, it was awarding less than $20,000 in grants to area nonprofit organizations. This year, it will award approximately $90,000.

TCWLF has two primary means of raising funds: (1) the TCWLF Fellows program, comprised of attorneys who pledge an annual donation for 10 years; and (2) the annual Grants & Awards Luncheon. Proceeds from

Texas Prisons to Get Some Relief from Summer Heat

During the 88th Texas Legislature, the Texas Department of Criminal Justice received $85 million to install air conditioning in its units.

Currently, 31 of TDCJ’s units are fully air-conditioned and 55 are partially air-conditioned for a total of 43,572 ‘cool beds,’ according to TDCJ statistics.

Since 2018, 6,948 cool beds have been built, while another 3,437 are currently under construction. 11,455 are currently ‘in design.’

The $85 million from the legislature came after the Senate rejected a House-approved bill that would have mandated all TDCJ prisons have air conditioning set between 65 and 85 degrees.

The bill, HB 1355, was filed by State Rep. Carl Sherman of Desoto. The bill was positively received in the House, which earmarked $545 million in their budget proposal in order to install full air conditioning in all Texas prisons by 2031. Sherman’s bill had bipartisan support from Reps. Alma

Allen, Greg Bonnen, Terry Canales, and Jeff Leach.

Discussions of air conditioning in Texas prisons always occur during legislative years but were particularly prominent this year after the deaths of several inmates.

Tona Naranjo believes her son, Jon Anthony Southards, died as a result of excessive heat while in a Texas prison.

Southards was found unresponsive in his cell at the Texas Department of Criminal Justice’s Estelle Unit near Huntsville on June 28, 2023.

On July 18, inmate Anthony Deshon Jennings was found “in medical distress” and taken to the infirmary, where he was pronounced dead at 2:07 p.m. A cause of death has not been determined.

Some are quick to conclude that inmates in prison are dying because of extreme heat. TDCJ has not classified an inmate’s death as heat-related since 2012.

TDCJ has units that have full air conditioning; others that have

partial; and others still that have none, according to a 2022 study by the Texas A&M Hazard Reduction and Recovery Center.

In 49 units, 62,300 inmates have only partial access to 10,238 air-conditioned beds.

In 30, 23,714 inmates have access to full air conditioning.

There are an estimated 13,566 inmates in 21 units with no air conditioning.

In August 2023, The Texas Tribune examined recent inmate

death records using the Custodial Death Report from the Office of the Attorney General of Texas. At least 41 inmates “have died of heart-related or undetermined causes” since the start of summer.

The Texas Justice Initiative, using the same data, estimates that, in 2023, 422 inmates died of “natural causes/illness” while in TDCJ custody. This is down from 464 in 2022. As of Feb. 28, 2024, 39 people have died while in TDCJ custody.

Austin Bar Member Pete Reid’s Social Media Alter Ego Earns Nomination for Scottish Influencer Award

You may know Pete Reid as chair of the Austin Bar’s Business, Corporate and Tax Law Section. You may also know him from his award-winning commercials.

But you may not know his alter ego: Allaster McKallaster, angry Scottish soccer commentator, who has racked up more than 60 million views on Instagram and TikTok.

McKallaster has several famous followers, including Ryan Reynolds and Scottish actor Gerard Butler.

Recently, Reid, a.k.a. McKallaster, was nominated for Influencer of the Year in the sports category at the Scottish Influencer Awards.

While he didn’t end up winning,

he did attend the ceremony and red-carpet events in Glasgow. He also recorded some new content

Inmates in Darrington Unit’s main hallway on a July day. Darrington is one TDCJ prison with no air conditioning. Photo by Jolie McCullough, The Texas Tribune

Austin Bar Member Hon. Rudy Metayer Named Leadership Austin’s 2024 Outstanding Alum

Austin Bar member Hon. Rudy Metayer received Leadership Austin’s 2024 Outstanding Alumni Award at the organization’s Community Engagement Awards event on Feb. 23, 2024.

Every year, Leadership Austin, a 501(c)(3) nonprofit that provides leadership training, recognizes exceptional individuals who lead with a commitment to improving the community.

The Outstanding Alumni Award is given in honor of Polly Scallorn, who was the founding executive director of Leadership Austin and served in that role for 15 years. It is Leadership Austin’s highest award given to a graduate of its flagship program, Essential, and is determined based on an alum’s length and breadth of community service.

The award epitomizes the highest standards of integrity and servant leadership while demonstrating a commitment to the organization’s core values: equity, relationships, and learning.

In his career as an attorney, Metayer has represented both private and public entities in a diverse array of cases. He is the proud first college graduate in his Haitian immigrant family.

Metayer’s work extends beyond the courtroom. He has taught atrisk children, and has been integral in establishing partnerships

between law enforcement, the State Bar, and the community to address policing challenges. He also serves as a city councilmember for the City of Pflugerville.

Metayer is a staunch advocate of expanding access to justice. He regularly participates in the Austin Bar Foundation’s Veterans’ Legal Assistance Program (VLAP)’s pro bono legal advice clinics for U.S. military veterans.

Beyond the legal realm, Metayer shares life with his wife, Letisha, and their three daughters: Celeste, Arielyn, and Brooklyn.

Below is a brief Q&A with Metayer reprinted from Leadership Austin’s alumni newsletter, In the Loop:

Leadership Austin (LA): What was your first experience leading in the community and how did this shape your leadership journey?

Rudy Metayer (RM): Helping to co-create an honor code at The University of Texas. It taught me that I didn’t need a title to get something done. Just a desire to make a change.

LA: In the face of challenges, what strategies do you employ to maintain community resilience?

RM: An open line of dialogue. A willingness to learn new things. A humility to admit if I am wrong. A desire to serve. It’s never been about me. It’s been about everyone I serve and help.

LA: If you could time travel, what period or era would you travel to and why?

RM: When I was a kid, I watched Happy Days when I was sick and thought that would be a great time to live in our country. Then one day I realized that since I was black, I wouldn’t necessarily have the same experiences Richie, the Fonz, and Potsie had on the show. So given that fact,

I’m happy living in the time we do now since my rights and opportunities are guaranteed at a level they haven’t been in previous times in history. Alternately, I would love to go 10 years into the future and see what we did to solve the divisiveness we are experiencing today. I would bring back those solutions to solve our problems in the present. AL

Hon. Rudy Metayer (center), Leadership Austin’s 2024 Outstanding Alum, stands with Susana Carbajal (L), Chief of Staff for the City of Austin, and Jill Goodman (R), Leadership Austin’s president and CEO, at the Community Engagement Awards Ceremony.

Photo credit: Charlie Palafox

Report Deems Solitary Confinement in Texas a Humanitarian Crisis

The Texas Civil Rights Project (TCRP) recently released a report, “Solitary Confinement in Texas: A Crisis with No End,”1 in which the nonprofit calls for the U.S. Department of Justice (DOJ) to open an investigation into solitary confinement practices in Texas.

An investigation is called for, the report reads, due to alleged violations of the federal Civil Rights of Institutionalized Persons Act.

The report was a joint collaboration by TCRP, the Civil Rights Clinic at The University of Texas School of Law, the Behind Bars Data Project at the University of California Los Angeles School of Law, and the Texas Justice Initiative.

The report focuses on two prisons: H.H. Coffield Unit and Mark W. Michael Unit, both in Tennessee Colony, Tex.

It is at these units that “the injustices of solitary confinement are particularly egregious,” the report reads.

During the winter and spring of 2023, researchers from TCRP and the UT Civil Rights Clinic conducted interviews, reviewed Texas Department of Criminal Justice (TDCJ) data, and visited the prisons to interview inmates.

Based on these sources, the report identified seven primary issues:

1. Solitary Confinement Is Detrimental to Mental Health

Individuals interviewed for the report had spent anywhere between several months to decades in solitary confinement, with one individual spending 33 years, the report reads.

These individuals reported numerous instances of anger, boredom, stress, loss of sense of reality, suicidal ideation, trouble sleeping, lethargy, impaired concentration, confusion, memory loss, paranoia, panic attacks, hallucinations, delirium, and depression while in solitary confinement.

Individuals in solitary confinement do not have easy access to mental healthcare, the report says.

Per TDCJ policy, staff are re-

quired to conduct at least weekly “mental health checks” for individuals in solitary confinement.

“But these checks amount to little more than a cursory, ‘How are you?’ or ‘Are you okay?’” the report states.

Even if the inmate responds no, they are not okay, the staff member moves on, the report says.

Between 2020 and 2022, there was an average of 52 suicides per year in TDCJ facilities, according to data analyses by Texas Justice Initiative,2 which is 86 percent greater than the average in U.S. prisons, according to 2019 data released by the DOJ.3

2. Texas Prisons Are Consistently Understaffed

Maximum-security

TDCJ facilities had an overall average incarcerated-people-to-correctional-officer (IP-CO) ratio of 6.7 to one in September 2021, with 10 of these facilities having a ratio of nine to one.

Some inmates reported going as long as 15 hours without seeing an officer, the report reads, and in the Michael and Coffield Units, it was common for a single officer to be assigned to three wings—approximately 180 inmates.

“While officers in general population prisons can facilitate recreation or dayroom time for many people at once, security protocols for people in solitary dictate that only two people can be in the dayroom at once, and they must be chained to opposite sides of the rooms so they cannot interact,” the report reads.

Some inmates reported being left chained in the dayroom or in recreation cages for six to seven hours at a time when officers were needed elsewhere, the report reads.

As a result of staffing shortages, some officers reportedly tasked inmates outside of solitary confinement with staff duties, such as security and mental health checks and handing out mail.

Short staffing particularly strains the relationship between inmates and officers when staff are not available to escort inmates to visit family, the report reads.

Further, TDCJ has mandatory overtime, and officers are reprimanded when operations do not run according to policy—which is frequently out of their control and solely the result of understaffing.

All of this leads to staff burnout and inmate suicide, the report reads.

3. Arbitrary Rules; No Clear Path Out

In 2017, TDCJ officially ended the practice of punitive solitary confinement.4 However, the report reads, the change seems to have been in name only, as many of those who were previously in solitary confinement were now in “administrative segregation placement,” TDCJ’s highest security classification.

Per TDCJ policy, administrative segregation placements must be reviewed by the State Classification Committee after seven days, then 60 days later, and then every 180 days. Inmates may also be placed in solitary based on affiliation with a security threat group (STG), also known as prison gangs. Placements based on STG status are reviewed annually.5

Officially, TDCJ recognizes the following STGs:

1. Aryan Brotherhood of Texas

2. Aryan Circle

3. Barrio Azteca

4. Bloods

The H.H. Coffield unit, one of the two Texas prisons upon which the report focuses, is located in Anderson County, five miles southwest of Tennessee Colony, Tex.

8. Partido Revolucionario Mexicanos

9. Raza Unida

10. Texas Chicano Brotherhood

11. Texas Mafia

12. Texas Syndicate6

Affiliation with an STG is a common reason inmates are placed in solitary, the report reads. “Affiliation” could be indicated by certain tattoos or hand signs, the report says.

Per TDCJ policy, after the first seven-day and 60-day reviews, inmates in solitary confinement are allowed to attend review hearings and to present a statement, as well as written statements from witnesses and evidence to support their release to general population, the report reads.

The only way out of solitary confinement for those placed based on STG status is through the Gang Renouncement and Disassociation (GRAD) process. Participants need to have clean disciplinary records, must officially renounce the gang in question, and must provide information on the gang and its members to prison authorities.

Many inmates in solitary confinement who were placed there because of affiliation with an STG decline to participate in GRAD because: 1) it poses a danger to their safety; 2) they refuse to admit to something they are not part of; or 3) the gang is their family, the report states.

“During the decade that he has spent in solitary, one person at Michael [Unit] said that he has never been notified about a review hearing,” the report reads. “Several people we spoke with have resigned themselves to never getting back to general population. With parole dates approaching, they will be released directly into the community after spending years in solitary.”

4. Solitary Confinement Cells Are in Disrepair

The approximately 6-by-10-foot cells often have no windows, so many inmates go months or even years without seeing sunlight, the report states.

Further, the metal sleeping bunks are frequently rusted, and the beds are lumpy and uncomfortable and lack pillows, the report reads.

Cells are rarely cleaned between inhabitants. Many of the inmates interviewed for the report said that when they first entered their solitary confinement cells, the walls were

stained with human excrement, the cells stank of urine, and there were bloodstains in various places.

As is the case with about 70 percent of Texas’ prisons,7 Michael and Coffield units lack air conditioning. In the summer, temperatures in the prisons can exceed 110 degrees. Inmates in solitary confinement are unable to access the temporary relief of showers available to their counterparts in general population, the report reads.

Solitary cells are frequently invaded by ants, cockroaches, mosquitoes, and rats. Some interviewees even reported finding venomous snakes, such as a copperhead, and spiders, such as black widows, in the cells.

Many inmates reported their cells’ toilets do not work unless they flush multiple times at once.

5. Solitary Prisoners Do Not Get Sufficient Exercise or Nutrition

Inmates reported little to no time outside. One interviewee, interviewed in March 2023, said he had not been outside since May 5, 2022.

In addition to the lack of outdoor time, inmates reported the food they are given is unappetizing and lacks nutritional value. Many rely on food from the commissary to make up for this, but some are unable to access the commissary because they do not have the money to do so and/or because their secu-

rity status prevents them.

Further, there is no system in place to ensure inmates with medically prescribed diets get food that follows these diets. Instead, inmates report having to specifically ask for such meals, the report reads.

Additionally, a Muslim man interviewed for the report said the prison staff would not accommodate the meal schedule he was required to follow for Ramadan.

“People are also denied food by officers as a means of punishment,” the report reads.

TDCJ has a “food loaf restriction” policy. An inmate may be placed on

Continued on page 28.

Solutions

The report calls solitary confinement in Texas a humanitarian crisis.

Legislative solutions do not seem to be forthcoming. Proposed bills that would have limited administrative segregation placements based on STG affiliation, such as HB 480 and HB 812, or ordered studies on the impact of administrative segregation on people, such as HB 813 and SB 1312, did not advance beyond a committee hearing in the 2023 Texas legislative session.

2 https://texasjusticeinitiative.org/ datasets/custodial-deaths.

3 https://bjs.ojp.gov/sites/g/files/ xyckuh236/files/media/document/ sljsfp0019st.pdf.

4 Clarke, Matt. “Texas Prisons Stop Using Solitary Confinement as Punishment, but Thousands Kept in Administrative Segregation.” Prison Legal News (July 6, 2018), https://www.prisonlegalnews.org/news/2018/jul/6/ texas-prisons-stop-using-solitary-confinement-punishment-thousands-kept-administrative-segregation/.

such a restriction when the inmate:

• Refuses to return, or destroys, a food tray, cup, or utensils;

• Throws food, tray, cup, utensils, or other substances, including human waste;

• Spits on or at staff members or other inmates;

• Refuses to return uneaten food;

• Refuses to allow closure of the food tray slot; or

• Destroys or tampers with the food tray slot or locking mechanism.The length of time for the restriction is at the discretion of correctional staff.8

Finally, the report reads, medical care is generally inaccessible for inmates in solitary. Inmates report putting in I-60 forms to request various medical services, such as hernia treatment or lab results, and waiting weeks to months due to staffing shortages. Further, inmates with types 1 and 2 diabetes report having difficulty getting the insulin they need multiple times a day.

Deprivation of nutritional food,

exercise, hygienic living facilities, and medical care serve no penological function, the report reads.

6. “Super Segregation” at Coffield Coffield Unit has a level above administrative segregation called “administrative lock-up (ALU),” which inmates refer to as “super seg” or “separate seg.”

Inmates in this unit’s 12 cells are deemed particularly dangerous to security. All the inmates in ALU are reassigned to different cells every week and their property is searched, the report reads.

There is no review process for ALU and no formal way out, the report says. When an ALU inmate needs medical attention, the rest of the prison must shut down. As a result of this hassle, the staff will sometimes not pull inmates out of ALU to receive medical treatment, the report states.

The ALU cells are always full. One inmate has been there for about a decade; another, now in the lower administrative segregation, spent 23 years in ALU.

“Researchers at the University of California San Francisco School of Medicine have developed programs in North Dakota,9 Oregon,10 and other states to phase out solitary confinement with no increase in violence or security concerns,”11 the report reads. “Such a program in Texas could improve the lives of incarcerated people and staff alike.”

The report recommends that TDCJ should conduct a study of the problems, effects, and potential areas for change regarding solitary confinement, then implement a pilot program similar to UCSF’s to phase out solitary at Coffield and/or Michael.

The report also urges the DOJ to get involved.

“DOJ involvement will make clear that the current abuses can no longer continue, and highlight to TDCJ the need to take action itself,” the report states. “Coffield, Michael, and the system as a whole are ripe for federal investigation.” AL

ENDNOTES

1 https://aab91155-966e43a7-af87-a209b39e1f8b. usrfiles.com/ugd/a4ea0d_7738c8c3097148ef814e8c157936335e. pdf.

5 TDCJ Administrative Segregation Plan 16 (2012), https://tifa.org/ wp-content/uploads/2014/02/ Administrative-Segregation-Death-Row-Plan-1.pdf.

6 https://tdcj.texas.gov/documents/ cid/stgmo_faq_pamphlet_english. pdf.

7 https://apnews.com/article/texas-prison -air-conditioning-families-rally-bdd5f3d46462d804cc1d8c7116af5d1d#:~:text=Only%20 about%2030%25%20of%20 Texas,the%20state’s%20prisons%20 since%202012.

8 https://www.tdcj.texas.gov/divisions/cmhc/docs/cmhc_policy_manual/E-39.02.pdf.

9 Cloud, David et al. “‘We Just Needed to Open the Door’: A Case Study of the Quest to End Solitary Confinement in North Dakota.” 9 Health & Just. 28 (October 2021).

10 Ahalt, Cyrus et al. “Transforming Prison Culture to Improve Correctional Staff Wellness and Outcomes for Adults in Custody ‘The Oregon Way’: A Partnership Between the Oregon Department of Corrections and the University of California’s Correctional Culture Change Program.” 8 Advancing Corrections J. 10 (2019).

11 University of California San Francisco, Amend: Changing Correctional Culture (2023), https://amend.us/.

The report found that “the injustices of solitary confinement are particularly egregious” at the H.H. Coffield and the Mark W. Michael units, both in Tennessee Colony, Tex..

The opinions expressed in The Serious and The Salty are those of the author and do not necessarily represent the views of the Austin Bar Association membership or the Austin Bar Association board of directors.

The Serious

Have you heard of The Caselaw Access Project? I had not. The Caselaw Access Project (CAP) was founded at Harvard in 2015. On March 8, 2024, CAP released over 40 million state and federal court decisions.

CAP offers free public access to over 6.5 million decisions published by state and federal courts throughout U.S. history. A quick trip to the site takes you to an interactive U.S. map. If you hover over Texas, you discover that 250,659 unique cases have been uploaded, 15 reporters are uploaded, and 1,261,205 pages were scanned.

CAP’s “why” really resonated with me. If ignorance of the law is no excuse, why do we keep people ignorant of the law? Because of its “why,” CAP is facing lawsuits from several states suing to keep their laws unpublished. Whenever I think about this, my mind literally stops.

“But, why? What? Wait.” I have yet to find an explanation that quiets my mind. Most people do not read fine print. Are Georgia, Mississippi, and Kentucky (the states I know have opposed CAP) terrified that all their citizens will start reading all of their laws?

Georgia attempted to argue that the exclusive right to publish laws was given to LexisNexis. SCOTUS responded with, “Under

States Try to Keep Their Laws Unpublished and the Most Ridiculous Lawsuits of 2023

BY STEPHANIE HOLAN, HOLAN LAW PLLC

Texas Pete hot sauce was sued because the hot sauce was not Texan but North Carolinian. Does anyone know if this has been addressed with French fries?

a 200-year-old common law doctrine, edicts of government are not eligible for copyright protection … . That is because edicts of government are fundamental to our democracy.”

There are jokes for the making here. Only this isn’t funny.

Author’s Note: I need no help giving Lexis a side-eye. Price gouging? Extortion? I said it. Don’t come for me.

The Salty

Have you heard of the U.S. Chamber of Commerce Institute for Legal Reform? I had not. Each year, it releases a list of the 10 Most Ridiculous Lawsuits.

A quick perusal reveals that someone has sued Crocs for shrinking shoes. Instead of suing for Crocs shrinking, shouldn’t we question those who wear Crocs in the first place?

Subway is being sued regarding the tuna content in their tuna sandwiches. SubwayTunaFacts.

com was founded in response to the lawsuit. If you need a distraction from your own case minutiae, it’s worth a read. I didn’t know there was a Seafood Import Monitoring Program. Now I do.

A spicy lawsuit was filed against McCormick over El Guapo-brand New Mexico chile pods based on where they originate. At the center of the controversy is the fact that customers are led to believe the pods are from New Mexico. I would think a more legitimate concern would be whether the pods were actually chile pods.

Texas Pete hot sauce was sued because the hot sauce was not Texan but North Carolinian. Does anyone know if this has been addressed with French fries?

Burger King is being sued because their Whoppers aren’t “whoppers.” What is the appropriate size to declare a burger a “Whopper?” Anyone?

Polar Corp. was sued for its lemon-flavored carbonated water not being “lemon-y” enough.

Taco Bell is also facing a lawsuit because the Crunchwrap Supreme in ads features more beef than is actually in the Crunchwrap. Am I the only one that thinks the lawsuit should be that it’s not actually beef?

Buffalo Wild Wings is under scrutiny because their boneless wings may not be deboned wings. I anticipate Red Bull being next in line; I’ve yet to sprout wings.

Kraft has been sued because Velveeta Mac and Cheese cups did not properly include “prep time” for microwavable mac and cheese. And I thought I was busy! I cannot compete with the plaintiff who needed to know the time required for opening the package and ingredients so they could manage their time effectively.

And last, the woman who stole and returned Lady Gaga’s dogs sued her because the $500,000 reward was insufficient. I think she will need more for her defense.

I hope these snippets bring you tiny moments of Zen. Until we meet again, fair readers. AL

Texas Access to Justice Commission Votes “No” on Allowing Limited Legal Services by Non-Attorney-Owned Entities

In October 2022, the Texas Supreme Court directed the Texas Access to Justice Commission (TAJC) to study existing rules and recommend actions that would accomplish two goals:

1. Allow qualified non-attorneys to provide limited legal services directly to low-income Texans; and

2. Allow non-attorneys to have economic interests in entities that provide legal services to low-income Texans while preserving attorneys’ independence.

The TAJC formed a working group that met throughout 2023 to study these issues and consider input from the bench, the bar, community partners, and the public.

In December 2023, the working group released its report and recommendations.1

In January 2024, the commission voted to approve several recommendations regarding paraprofessional representation from the working group’s report,2 but the following recommendation was not approved:3

Entities with Non-Attorney Ownership

The working group recommended a limited exception to Texas Disciplinary Rule of Professional Conduct 5.04.

Rule 5.04(d) prohibits a lawyer from practicing “in the form of a professional corporation or association authorized to practice law for a profit” when ownership interests are held by a non-lawyer. The rule also

Rule generally prohibits lawyers from sharing legal fees with non-lawyers (5.04(a)), and prohibits lawyers from partnering with non-lawyers in the practice of law (5.04(b)).

According to the working group, a sufficiently limited exception to Rule 5.04 would 1) enable non-lawyers to have economic interests in entities that provide legal services to low-income Texans; 2) preserve lawyers’ professional independence; 3) expand access to justice for low-income Texans; 4) be studied first through a pilot program or regulatory sandbox; and 5) might potentially only focus

on legal services for which there is a particular need.

The proposed pilot program or regulatory sandbox would be overseen by the Judicial Branch Certification Commission (JBCC), which would license a limited number of non-attorney-owned entities to provide narrowly defined legal services.

These entities’ applications would need to describe the proposed legal services they would provide in detail and explain how such services will expand access to justice for low-income Texans.

Each entity licensed by the pilot program would also have to provide the JBCC with detailed reports and agree to monitoring by the JBCC to ensure the entity is providing quality legal services either pro bono or at affordable and transparent rates; the services are rendered in compliance with attorney ethics rules; and clients are protected from exploitation and inferior services.

Each approved entity must have a Texas-licensed attorney employed and identified to the public as the person responsible for ensuring the entity’s compliance with ethical and regulatory standards.

All legal advice provided by the

entity must be rendered by a licensed attorney or paraprofessional, not by artificial intelligence (unless reviewed for accuracy by an attorney or paraprofessional).

The JBCC would establish a process allowing clients of entities to provide feedback and file complaints.

Approved entities would be ineligible for funding for legal service/legal aid organizations through federal or state entities, including the Texas Access to Justice Foundation.

Approved entities would need to reapply and get relicensed each year.

The working group further recommended that either the Texas Supreme Court or the JBCC adopt a framework to evaluate whether licensed entities adequately increased low-income Texans’ access to free or affordable legal services.

A survey of the working group members showed equal support for two approaches:

1. Adopt a fixed threshold of clients, as a percentage of all clients served, who qualify as low-income; or

2. Evaluate each entity’s application and determine on a case-by-case basis whether the proposal will likely expand access to justice.

The working group analyzed the potential risks and benefits for low-income Texans of allowing nonlawyer-owned entities to provide legal services in three high-demand practice areas: family law, immigration law, and tax law.

While family law is often complicated, some aspects of the practice, such as name changes, could be easily provided by licensed entities that have non-lawyer ownership, the report reads.

Immigration law is another complicated practice area, and the report recommends licensed entities in this field only assist in visa applications.

Tax law, however, “is an area where non-attorneys already have a wide scope of permitted practice,” the report reads. These non-attorneys include certified public accountants and enrolled agents, who are licensed and regulated by the Internal Revenue Service under Circular 230.

Thus, the report recommended, the JBCC should serve as a consumer protection bureau and apply strict scrutiny to applications from unlicensed, unregulated tax return preparers.

To ensure lawyer independence,

the working group recommended that licensed entities file written assurances, signed by the CEO or equivalent owner/manager/board of directors, which would include:

• Commitment not to interfere in the professional independence of a lawyer;

• Procedures to allow an attorney to maintain proper standards of work, make decisions in the best interests of clients, maintain client confidentiality, and segregate client funds;

• Requirement that entity employees assisting in the delivery of legal services abide by the rules of attorney professional conduct;

• Acknowledgement of an attorney’s role as an officer of the legal system and the obligation to provide pro bono legal services;

• Process for annual review and amendment of procedures as needed to ensure effectiveness;

• Annual certification of compliance;

• Agreement to allow the certifying agency to audit the entity, at the entity’s expense, to assure compliance.

The working group also recommended that non-attorney-owned entities licensed to provide legal services should adopt proactive management-based regulation or PMBR. According to the report, this “entails an entity’s self-assessment to determine if it has effective systems in place.” If an entity finds itself lacking in a particular area, it can work with a regulator to achieve compliance.

The working group based this recommendation off a PMBR system that developed in Australia after non-attorney-owned law firms were allowed to form. PMBR systems have also been implemented for attorneys in Colorado4 and Illinois.5

It is worth noting that the TAJC’s votes are not the final word on either issue (paraprofessional representation or non-attorney-owned entities), as the Texas Supreme Court retains the power to implement, or decline to implement, either or both of the working group’s recommendations. AL

ENDNOTES

1 See “Bending the Rules: Texas Access to Justice Commission Recommends Allowing Paraprofessionals to Provide Limited Legal Representation.” 33(2) Austin Lawyer 30-31 (March 2024).

2 https://www.texasatj.org/sites/default/files/2023.12.05%20Final%20 Report.pdf.

3 https://blog.texasbar.com/2024/01/ articles/access-to-justice/texas-access-to-justice-commission-takesaction-on-working-group-report/.

4 See Colorado Supreme Court, Office of Attorney Regulation Counsel, “Lawyer Self-Assessment Program,” available at https://coloradosupremecourt.com/AboutUs/LawyerSelfAssessmentProgram.asp (last accessed Dec. 5, 2023).

5 See Ill. S. Ct. R. 756(e)(2) (requiring self-assessment for attorneys who disclose that they do not have active malpractice insurance coverage).

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What’s With a Trust? (Part One)

BY ZACH WIEWEL, TEXAS TRUST LAW

Since the beginning of Western civilization, wills have been the primary tool for individuals to disperse their assets to loved ones at their death. Even the Bible includes several references to wills.

Now, seemingly all of a sudden, trusts, particularly revocable living trusts, rather than wills, are the preferred method of many estate planning lawyers. Why?

Two reasons stand out: mental disability and death.

This article will discuss mental disability and the next installment will address post-death matters.

The most critical matter in an estate plan is what happens on mental incapacity.

When someone has a will, the only legal tool that is available for managing financial assets without court supervision is a durable power of attorney. Durable powers of attorney can be problematic. Financial institutions are sometimes reluctant to accept one because they can never be certain that the power of attorney was not changed after the one being presented was signed.

While Texas law provides a process to ultimately force the issue, non-attorney “helpers” typically want less, not more, legal entanglement.

A “funded” revocable living trust can avoid this dilemma because an agent under the power of attorney is just that—an agent, not the owner. A trustee holds legal title, and if the trust is not honored a claim for conversion and other remedies could result. This gives the person trying to help the incapacitated person more control. Since whomever is tasked with this unenviable job is also busy with the rest of their life’s activities, minimizing hassle is a virtue.

It is good to note that no one must serve as an agent or trustee. Making that role simpler is an enticement to assume that responsibility.

Funding a trust means that the ownership of the asset is no longer

in the name of the person in their individual status; rather, title has been changed to name the trustee as the owner.

A corporate analogy works best to describe this process. If Elon Musk is hurt in a car wreck today, Tesla just gets a new CEO who has legal authority to run the company. Similarly, in a revocable trust setting, the trustee is the CEO and can manage the trust property. Successor trustees are normally designated too.

Unlike a company, these trusts do not have tax identification numbers, nor do they file special tax returns. In addition, a homestead transferred into a trust can still qualify for a homestead exemption and receive a freeze on property taxes at age 65.

Having said that, the problem with revocable living trusts (and a legitimate criticism of them) is getting them funded. An experienced estate planning attorney

The most critical matter in an estate plan is what happens on mental incapacity. When someone has a will, the only legal tool that is available for managing financial assets without court supervision is a durable power of attorney, and these can be problematic.

can provide the help needed to accomplish that task, which is not rocket science but does take diligence. Future assets will also need to be titled in the trust’s name.

From the standpoint of clients, the most important factor is “me!” If I need help, I want to make sure the person I select has all the legal tools they need

to pay my bills, manage my investments, and minimize taxes. A properly funded revocable living trust is a superior tool in accomplishing those goals, which is one of the major reasons for their popularity. AL

FY2023 Texas Medicaid Fraud Investigations Recover Over $730 Million

More than $730 million was recovered in fiscal year 2023 as a result of several state agencies’ coordinated efforts to audit and investigate complaints of fraud, waste, and abuse in the Texas Medicaid program.

The recently released Joint Annual Interagency Coordination Report for fiscal year 20231 details the efforts of the Texas Health and Human Services Office of Inspector General (OIG), the Texas Office of Attorney General Medicaid Fraud Control Unit (MFCU), and the Texas Office of Attorney General Civil Medicaid Fraud Division (CMF).

In FY2023, OIG recovered more than $532 million in Medicaid and non-Medicaid amounts; CMF recovered more than $151 million in Medicaid and non-Medicaid amounts; and MFCU recovered more than $51 million.

A CMF state civil action against Shire OLC, Baxter International, Baxalta Incorporated, Viorpharma Inc., Takeda Pharmaceuticals USA, and Takeda Pharmaceuticals America resulted in a total Texas recovery of more than $42 million. An additional total Texas recovery of $3 million was recovered from Biogen Inc. after a CMF federal/state civil action. CMF is currently pursuing “significant” cases against:

• Medical Diagnostic Laboratories, for misrepresentations to Texas Medicaid about the program’s best-price rules.

• Gilead Sciences, for allegedly engaging in unlawful marketing schemes.

• Richard Malouf, DDS, for misrepresentations to Texas Medicaid. The trial court entered final judgment against Malouf for $16 million, and the State’s partial summary judgment was confirmed on appeal. Malouf has filed a petition for review with the Texas Supreme Court.

• Laboratory Corporation of America, for misrepresentations relating to kickbacks and best-price rules. The trial court granted summary judgment for the defendant, and the State has appealed.

• Pfizer, Tris Pharma, and Tris CEO Ketan Mehta for manufacturing an ADHD drug that was adulterated due to poor quality control, resulting in misleading labeling. Tris Pharma and Mehta are also charged with unlawfully promoting the drug through misleading claims about efficacy, causing the drug to be misbranded under state and federal law.

MFCU obtained 79 indictments and 61 convictions on various Medicaid fraud charges. MFCU opened a total of 122 cases, with 1,101 cases pending.

CMF opened a total of 56 cases, closed 157 cases. and has 356 cases pending. AL

ENDNOTE

1 https://oig.hhs.texas.gov/sites/ default/files/documents/reports/ joint-annual-coordination-report-fy-2023-final.pdf (March 2024).

Small Firm Section, where she served as chair, vice chair, and programming committee chair. She currently serves as president of the Rotary Club of Westlake, Rotary Paul Harris Fellow, secretary of the Austin chapter of Claims and Litigation Management Alliance, on the board of directors for the Women Symphony League, and is an active member of the Westlake Chamber of Commerce. Her most important accomplishment is her son, Wyatt, a third grader at Eanes Elementary.

The following candidates are running for four available director positions, each with a two-year term:

Elliott Beck

Beck works as the staff attorney for the 345th District Court. He is currently on the board of directors of the Austin Bar and a co-chair of the DEI Committee.

Beck has been a member of the Austin Bar and AYLA since he was licensed in 2011. Since that time, he has served as a co-chair for the Austin Bar/AYLA Leadership Academy, graduated from the 2018 Leadership Academy class, served on the Austin Bar Gala Planning and Bench Bar committees, and presented at Bench Bar.

Beck also previously served as a precinct chair and chair of the Rules Committee for the Travis County Democratic Party, as well as the chair of the LGBT Law Section of the State Bar of Texas and the president of the Austin LGBTQ+ Bar Association.

At the courthouse, Beck works with the Local Rules Committee, and he advised the Travis County Law Library in its efforts to make pro se forms gender neutral. He is also a barrister in the Lloyd Lochridge American Inn of Court.

Beck lives with his husband,

Ryan, and their pups, Minnie, Bernie, and Pearl. The whole family loves movies and food, and the humans love wine and travel.

Sam Denton

Denton is a native Austinite, third-generation attorney, and Army veteran who currently serves on the Austin Bar board of directors and is seeking a second term.

Beginning in 2003, Denton served in the active duty and reserve components of the U.S.Army, both as a military intelligence officer and as a judge advocate (JAG) officer. His time in the military included a deployment to Iraq and service in key positions such as chief military intelligence officer for a maneuver enhancement brigade and chief legal advisor to a sustainment brigade.

In civilian life, Denton has worked as an attorney with the Special Prosecution Unit; co-founded Denton & Fahring, PLLC; and worked as a staff attorney for the Honorable Judge Maya Guerra Gamble at the Travis County Civil Courts. He currently serves as an associate corporate counsel at University Federal Credit Union.

With respect to community involvement, Denton is co-chair of the Austin Bar’s Fundraising and Events Committee, a former co-chair of the Leadership Academy, a Life Fellow of the Texas Bar Foundation, a member of the Robert Calvert American Inn of Court, and Cubmaster for his children’s local Cub Scout pack. He has also served in several other volunteer roles.

Denton and his wife, Kristen, an accomplished emergency room physician, are the proud parents of three wonderful children: twin seven-yearolds and a four-year-old.

Katie Fillmore

Fillmore is a litigation partner at Michael Best, focusing on health-

care, product liability, and construction law. Before private practice, Fillmore worked for the government, including the Texas Supreme Court, the First Court of Appeals, and the Texas House of Representatives.

Fillmore has continuously held leadership roles in the Austin legal community for 13 years. She is the longest-serving board member in the history of the Austin Young Lawyers Association (AYLA), serving from 2011 to 2024. Fillmore served in executive leadership roles for AYLA from 2013 to 2018, including president from 2016 to 2017. She also served on the board and executive committee of the Austin Bar from 2015 to 2017.

Fillmore has held legal leadership roles at the state and national levels as well. She was a commissioner on the Texas Access to Justice Commission from 2022 to 2023, during which time she served on the working group that prepared recommendations for the Texas Supreme Court regarding the paraprofessional rule change. She served on the board of the Texas Young Lawyers Association from 2018 to 2023. Fillmore has also held leadership roles in Defense Research Institute.

Outside of legal pursuits, Fillmore enjoys working out and being involved in the community.

Sarah Harp

Harp graduated from The University of Oklahoma with a Bachelor of Arts in political science and anthropology and a minor in history. She obtained her JD from The University of Tulsa.

As soon as she graduated from law school in 2014, Harp moved to Austin and joined the Austin Young Lawyers Association (AYLA).

Harp has served as a director, secretary, and treasurer of AYLA and is currently the president. She is a

recipient of the AYLA Outstanding Committee Chair Award and the President’s Award of Merit. Harp also serves as the project facilitator for the Austin Bar/AYLA Leadership Academy.

Additionally, Harp is a member of the District 9 Nominating Committee for the Texas Bar Foundation; is in the Guardian Angel Society for the Center for Child Protection; is a Volunteer Legal Services Judge Suzanne Covington Pro Bono Service Award Honoree; and recently took a Psychology of Criminal Behavior course at the University of Oxford in England.

Harp currently practices criminal appellate law at the Office of the Attorney General. In her free time, she enjoys reading non-fiction, watching every Bravo reality show, traveling, and hanging out with her dog, Moxie Mae.

Judge Sylvia Holmes

Judge Holmes assumed office as Justice of the Peace, Precinct 3, in 2019, with a commitment to upholding fairness and compassion in the legal system. Re-elected unopposed in 2022, she has continued her mission to serve the community.

Judge Holmes holds a BBA in marketing from The University of Texas at Austin’s McCombs School of Business and earned her law degree from the University of Alabama School of Law in 2006.

Prior to her judicial role, she worked in private practice and served as associate director of the Legal Services for Students Office at UT Austin for eight years.

With 18 years of legal experience, she brings a wealth of knowledge to her roles, including president of the Rotary Club of Austin, director at large of the ABA Criminal Law Section, and editor of the JPCA Gavel & Badge newsletter.

Elliott Beck Sam Denton Katie Fillmore Sarah Harp Judge Sylvia Holmes Rachel Seshan

Committed to community service, she’s a lifetime member of the Travis County Women Lawyers’ Association and volunteers in various initiatives, including supporting the Community First! Village and fostering civic engagement among students with Early Act First Knight.

Passionate about mentoring aspiring legal minds, Judge Holmes strives to make a meaningful impact and foster a stronger, more inclusive legal community.

Rachel Seshan

Seshan practices regulatory and administrative law, specializing in public utility law. Currently serving as an enforcement attorney at the Public Utilities Commission of Texas, she was previously a prosecuting attorney at the Texas Department of Licensing and Regulation. Her prior legal work was in private practice with a focus on construction and commercial litigation. In between the transition from private practice to regulatory attorney, she took time off to focus on family.

Seshan’s campaign for the Austin Bar board of directors is centered on promoting a healthier and more balanced legal community. She envisions a bar association that prioritizes mental health awareness, fosters a supportive environment for lawyers to find a better balance between their professional and personal lives, and encourages trauma-informed lawyering practices.

Seshan will advocate for initiatives that support lawyers in achieving a healthier work-life balance, recognizing the importance of mental well-being in maintaining high-quality legal services.

She will also push for the implementation of the Mental Health First Aid training program within our legal community, ensuring that lawyers have the skills and knowledge to support their colleagues and clients facing mental health challenges.

By focusing on these key areas and engaging with stakeholders, Seshan’s campaign aims to create a more supportive and mentally healthy legal community in Austin.

Beyond her legal work, Seshan is actively involved in professional and community activities. She is a member of the Barbara Jordan American Inn of Court, the Texas Bar College, and the State Bar of Texas Adminis-

trative Law and Public Utility Law sections, among others. She has also served on the board of directors for the Travis County Women Lawyers’ Association.

Seshan’s advocacy and volunteer work include pro bono legal assistance for organizations like American Gateways and the CANLAW clinic, demonstrating her commitment to giving back to the community.

Seshan holds a Master of Laws (LLM) degree in International Law from the University of Houston Law Center, a JD from South Texas College of Law, and a Bachelor of Arts in political science from Baylor University. AL

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