Austin Lawyer, April 2018 by Austin Bar Association

austinbar.org APRIL 2018 | VOLUME 27, NUMBER 3

Celebrating 125 Years of the Austin Bar The Road to Diversity

o honor the 125th anniversary of the Austin Bar Association, we are taking a look back at its history in each Austin Lawyer issue this year. The following is an excerpt from “Austin Lawyers—A Legacy of Leadership and Service,” pages 85-86, 116, and 132-133. “Since its formation in 1893, the Austin Bar Association was a loosely organized, primarily social society that met on call at the county courthouse. But in 1926, under the leadership of association president J.H. Hart, the Austin Bar Association formally changed its name to the Travis County Bar Association and developed its first set of bylaws, committees, and a dues structure. The group’s constitution called for regular meetings and dues of $2.50 per year, and

stated that the association’s purpose was to promote social intercourse among its members and to cultivate ‘a just sense of the duty owed by every lawyer not just to his clients alone, but to the courts and to the country.’ Membership was restricted to white persons who lived in Travis County. The constitution and bylaws set up four committees (Grievances and Disciple; Court Calendars and Rules; Law Library; and Entertainment), and 10 members constituted a quorum. The bar voted to adopt the 32 points of the Canon of Professional Ethics set out by the American Bar Association. The ethics code outlines professional conduct in terms of setting fees, treatment of witnesses, client confidentiality, and advertising, which it opposed: ‘all forms of self-laudation defy the traditions

and lower the tone of our high calling, and are intolerable.’ Like many other institutions, the Travis County Bar Association, which was evenPena tually to become a force in extending legal services to all citizens of Texas in the 1960s, was slow to adapt to the changing times. Black attorney Virgil Lott was denied admission to the Travis County Bar in 1953. The organization didn’t modify its bylaws to admit [black members] until 1965. While the organization may have been slow to admit black members, during the 1980s and 1990s, the organization took an active interest in promoting diversity. As the organiza-

Parker, Jr.

tion became larger and more professional, it also continued supporting public services such as the Lawyer Referral Services and the Volunteer Legal Services Family Law Clinic, which it established in 1991 to provide pro bono representation to underprivileged clients. In 1990, the year the Bar moved to the Chase Bank Building, Richard Pena became its first minority president. In 1996, Rev. Joseph C. Parker, Jr. became its first AUSTIN LAWYER AL AL African American president.”

Austin Bar’s Diversity Fellowship Program Leading the Way Towards Diversity and Inclusion

nitiated in 2009 by Judge Eric Shepperd, Judge Lora Livingston, Leslie Dippel, and Tony Nelson,

the Austin Bar Association’s Diversity Fellowship Program enables first-year law students of diverse backgrounds to

participate in law-firm, governmental-agency, and judicial internships for 10 weeks during the summer. Participants are selected through a competitive application process. The Austin Bar Foundation provides each student with a stipend funded by donations from participating Austin firms. Past participants in the program have continued on to traditional clerkships later in

law school and have reported successful employment after graduation—some with the firms that sponsored them as interns through the Austin Bar program. Tucker Villarreal was a participant in the 2017 Diversity Fellowship Program and had this to say about it: “My time as a fellow was an amazing experience and opportunity for me. It has given me a solid foundation continued on page 13

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CONTENTS

AUSTINLAWYER APRIL 2018 | VOLUME 27, NUMBER 3 AL A L INSIDE FEATURED ARTICLES 1

Celebrating 125 Years of the Austin Bar

Austin Bar’s Diversity Fellowship Program

Austin Bar Nominating Committee Announces Officer and Board Candidates

Texas Board of Legal Specialization Holds Swearing-In Ceremony

Texas Access to Justice Commission’s Justice for All Campaign

14 Austin’s Legal Community Celebrates Dr. Seuss Reading Day 14 Lawyer Referral Service of Central Texas

ONLINE

DEPARTMENTS 11 Opening Statement 12 Briefs 16 Third Court of Appeals Civil Update 17 Third Court of Appeals Criminal Update 18 Federal Criminal Court News 19 Federal Civil Court Update 20 AYLA 23 Practice Pointers

Third Annual Diversity Bar Mixer a Success Celebrating Diversity in Austin’s Legal Community

Health and Wellness Committee Seeks Input

EVENTS & MORE APR 13 Bench Bar Conference – 14

Eilan Hotel, San Antonio Register at austinbar.org

Committee Gathering Resources to Share at austinbar.org

MAY 3 National Association of Women

Seeking Nominations for Regina Rogoff and Professionalism Awards

Nominations Due to DeLaine Ward by April 20

ONLINE austinbar.org EMAIL nancy@austinbar.org MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Suite 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar

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AUSTIN YOUNG LAWYERS ASSOCIATION Austin Kaplan............................. President Jorge Padilla............................... President-Elect Sandy Bayne............................... Treasurer David King................................... Secretary Katie Fillmore............................ Immediate Past President

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DeLaine Ward........................... Executive Director Nancy Gray................................. Managing Editor Debbie Kelly............................... Director of AYLA Kennon Wooten....................... Editor-in-Chief Kelli Horan.................................. Editorial Assistant Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors, legislation affecting Austin attorneys, and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District Federal Court and Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab.

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Austin Bar Nominating Committee Announces Officer and Board Candidates Candidates Run Unopposed for Positions

he Austin Bar Nominating Committee announced the candidates selected for the 2018-2019 Board of Directors. The new board, along with incoming president Adam Schramek, will take office on July 1, 2018. Current board secretary, D. Todd Smith, is running unopposed for president-elect and current board treasurer, Kennon Wooten, is running unopposed for secretary. Rounding out the slate of

May 11 VOTING BEGINS FOR AUSTIN BAR 2018-19 BOARD OF DIRECTORS Email from Ballot Box Online. Last chance to vote: May 25

• Amy Meredith, Travis County District Attorney’s Office • Cindy Saiter, partner at Scott Douglass McConnico

Any qualified member not receiving the nomination of the committee may be included on the ballot by submitting a written petition, signed by 75 members of the Austin Bar. officers is current board member David Courreges, who is running unopposed for treasurer. The following candidates are running unopposed for four twoyear positions on the Board of Directors from 2018-2019: • Blair Dancy, partner at Cain & Skarnulis • Chari Kelly, Travis County District Attorney’s Office

AUSTINLAWYER | APRIL 2018

They will join Amanda Arriaga, Vasu Behara, Greg Sapire and Amanda Taylor, whose terms expire in 2019. Any qualified member not receiving the nomination of the committee may be included on the ballot by submitting a written petition, signed by 75 members of the Austin Bar, requesting that such member’s name be placed on the list of

TOP: Courreges, Dancy, Kelly. MIDDLE: Meredith, Saiter, Schramek. LEFT: Smith, Wooten.

candidates. Written petitions must be submitted to the Austin Bar office by Friday, April 13. If this occurs, ballots will be emailed from BallotBox Online on Friday, May 11, 2018. The last chance to vote will be at

the annual member meeting conducted at the 4th Friday CLE on Friday, May 25, 2018. Otherwise, the candidates running uncontested will serve as officers and on the board from AUSTIN LAWYER AL AL 2018-2019.

Texas Board of Legal Specialization Holds Swearing-In Ceremony Congratulations to Austin Bar Members for Earning Board Certifications

n Friday, Feb. 23, 2018, the Texas Board of Legal Specialization (TBLS) swore in 194 attorneys and 30 paralegals from around the state for Board Certification among 24 specialty areas at its annual induction ceremony in Austin. TBLS also announced its two newest specialty areas: Child Welfare and Property Owners Association (POA) Law. John F. Sheehy, Jr. was honored as the recipient of the inaugural Distinguished Attorney Award and Judge Dean Rucker was named this year’s Tom Garner award recipient. The ceremony, held at the AT&T Executive Education and Conference Center, also featured the executive director of the State Bar of Texas, Trey Apffel, as the keynote speaker. Of the more than 100,000 attorneys licensed to practice

in Texas, only about 7,400 are Board Certified. This designation sets them apart as being attorneys with the highest public commitment to excellence in their areas of law. The process is voluntary and can only take place after an attorney has been in practice for five years, with a minimum of three years’ experience in the specialty area, and has passed a rigorous exam. Applications are available for TLBS’s 2018 Board Certifications through April 30, 2018 at tbls.org. This is the first year attorneys can apply for the new Property Owners Association and Child Welfare board certifications. Paralegal applications will be mailed in May with a June 30, 2018 deadline. Congratulations to these Austin Bar members who were among those sworn in at the induction ceremony in February:

Civil Appellate Law: Colleen Sullivan, Maitreya Tomlinson Civil Trial Law: Robert Alden, Kathryn Allen Construction Law: Anthony Ciccone, William Erwin, Jr., Jessica Mangrum Consumer and Commercial Law: Carla Sanchez, Jameson Watts Estate Planning and Probate Law: Elizabeth Nielsen, Elizabeth Powdrill, Jordan Ware Family Law: Robert Frazer, Cade Jobe, Jami Turner Labor and Employment Law: Daniel Verrett

Trey Apffel, executive director of the State Bar of Texas and member of the Austin Bar Association, gives the keynote address at the TBLS swearingin ceremony. Photo by Jeff Hunter Photography.

Oil, Gas, and Mineral Law: Clayton Nance Personal Injury Trial Law: Robert Alden Residential Real Estate Law: AUSTINLAWYER AL AL Racy Haddad

APRIL 2018 | AUSTINLAWYER

Texas Access to Justice Commission’s Justice for All Campaign Fighting for Those Who Fought for Us

hat if the place where you belong was taken from you? Not just your house, but the life you built inside it: the self-reliance of living alone, the accomplishment of regular payments on the first of each month, the certainty that by doing everything right, the world would leave you to your happiness. But then, your insurance company double-bills your mortgage company and notices that you’re at risk of foreclosure start appearing in your mailbox. What would you do? You’d probably call or write a letter on law-firm stationary and have the problem wrapped up before breakfast. But when it happened to Frank, a disabled veteran, he knew he couldn’t fight this battle alone. This time, he needs us to fight for him. That’s why the Texas Access to Justice Commission created the Justice for All Campaign, to help fund the legal-aid organizations dedicated to serving Frank and the millions of others—our neighbors, our friends, our fellow Texans—who can’t afford a lawyer. When you contribute to the statewide campaign, you make sure that Texans like Frank get to keep their homes. Frank’s insurance company eventually admitted to the mistake but refused to correct the situation. Frank, who was in a panic, couldn’t afford to pay the extra amount. So Frank turned to legal aid for help. After a single letter from his attorney, the company’s owner repaid Frank with interest and sent a letter of apology. The notices stopped coming, and Frank has his peace. There’s something special about the feeling of belonging in 8

AUSTINLAWYER | APRIL 2018

a room, in a place that’s yours because you love it, because you take care of it. Texas has been that place— that home—for so many of us. Let’s keep it that way. Please, donate today. Visit donate.texasatj.org/www. AUSTIN LAWYER AL AL texasatj.org.

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OPENING STATEMENT

Introducing Quotations Inviting Readers to Read, Not Skip, Your Quotations BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

egal writers often need to use quotations in persuasive documents. Quoting a reliable source adds credibility to your assertions and can relieve the reader of independently checking a source. In this column I’ll discuss a technique for formally introducing quotations that can enhance persuasive force and invite readers to read the quotation— not skip it. But first, two caveats: (1) Legal writing requires scrupulous honesty and care in quoting; misquoting a source, intentionally or accidently, harms your credibility. (2) Legal writers should avoid over-quoting; use quotations for crucial legal language or to clinch a key point. Otherwise, paraphrase. Finally, this column isn’t about incorporating a quotation into your own textual sentence, like these examples: • The relevant statute states, “[a]ny taxpayer who paid the sales tax has standing to sue for a refund.” [citation] • The relevant statute provides that “[a]ny taxpayer who paid the sales tax has standing to sue for a refund.” [citation] Instead, I’ll address a formal lead-in to a quotation. A common and traditional way to introduce a quotation is to use a lead-in statement and a colon, like these: • The court stated as follows: • The statute provides the following: • The hearing officer made the following ruling: These forms are adequate but average. In their place, I recommend introducing the quotation with what we might

call an informative or persuasive lead-in by asserting a point the quotation will prove. So don’t write this: • The relevant statute provides authorization as follows: “Any taxpayer who paid the sales tax has standing to sue for a refund.” [citation]

Techniques for formally introducing quotations that can enhance persuasive force.

Instead, introduce the quotation by asserting a point the quotation will clinch, like this: • The Tax Code affirms Granger’s right to sue for a refund: “Any taxpayer who paid the sales tax has standing to sue for a refund.” [citation] The technique works for block quotations, too. We all know that readers often skip block quotations. According to Mark Hermann, author of The Curmudgeon’s Guide to Practicing Law, “you must trick the judge into learning the content of the block quotation.”1 He recommends summarizing the quotation’s substance in the lead-in sentence. And Bryan Garner, in The Winning Brief, offers similar advice: “For every block quotation, supply an informative, eye-catching lead-in.”2 So instead of this average lead-in: • The State intervened in operating Lincoln County Schools, and the superintendent thus acted under authority of the Education Code, which states as follows: The state board shall intervene in the operation of a school district to cause improvements to be made that will provide assurances of a thorough and efficient system of schools. Such intervention includes the authority of the state

superintendent to fill positions of administrators and principals. [citation] Try this: • Once the State intervened in operating Lincoln County Schools, the Education Code granted the superintendent the right to make personnel decisions for the vacant principal positions: The state board shall intervene in the operation of a school district to cause improvements to be made that will provide assurances of a thorough and efficient system of schools. Such intervention includes the authority of the state superintendent to fill positions of administrators and principals. [citation]

to read the quotation to see if you’re right. Second, even if readers skipLAWYER the block, they still AUSTIN AL AL get the content. Footnotes 1. Mark Herrmann, The Curmudgeon’s Guide to Practicing Law 8 (2006). 2. Bryan A. Garner, The Winning Brief 501 (3d ed. 2014).

The lead-in asserts a point and, to some degree, summarizes the quotation to follow. With this technique, according to Herrmann and Garner, you’ll get two payoffs. First, readers might read the block: the assertive tone of the lead-in invites them APRIL 2018 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Alexander Johnson Harry Jung TOP: Arbogast, Cofer, Lemmon, Madere, Neal, and Nicolas. BOTTOM: North, Prosser, and Smith.

Courtney Sampson Gregory Siemankowski Michelle Hartmann Tamene

AWARDS

April 1, 2018 marked the 35th anniversary of Gray Becker, PC, a firm that has represented Austin and surrounding areas in litigation in diverse civil practice areas from business law to high-asset family law disputes. In honor of its anniversary year, the firm unveiled a new look with a new logo. NEW TO THE OFFICE

After eight years as a Travis County prosecutor, Rick Cofer has announced the opening of the Law Office of Rick Cofer at 404 W. 13th Street. Cofer focuses on criminal defense. Pamela Madere joined Jackson Walker’s real estate practice as a partner, where she will represent clients before state and local governments.

DLA Piper announced the addition of a new team of institutional investor partners. The team, formerly of Jackson Walker, which includes David Parrish, Nicole Brennig, Elise Green, Philip Svahn, Sara Stinnett, and Richard Cardillo, represents foreign and domestic pension plans, endowments, insurance companies, private market solutions providers, family office, and other financial institutions. The Smith Law Firm announced the addition of Laura Haley and Jeff Nobles as name partners in the firm, now known as Smith Haley Nobles. Since its inception in 2006, the firm has evolved from D. Todd Smith’s solo practice to an appellate boutique with offices in Austin, Houston, and the Rio Grande

Valley. Haley, who resides near Harlingen, joined the firm in 2014. Nobles came on board and opened the firm’s Houston office in 2017.

of the Hearings and Tax Litigation Division.

David Whittlesey joined Shearman & Sterling as a litigation partner in its Austin office. MOVING ON UP

The Texas Comptroller of Public Accounts recently named Nancy Prosser as general counsel. The comptroller also created three new legal divisions. Don Neal will now serve as chief counsel of the Operations and Support Legal Services Division, Victoria North has been appointed chief counsel of the Fiscal and Agency Affairs Legal Services Division, and Jim Arbogast has been designated chief counsel

Jeremy S. Lemmon has become a partner of Fenimore, Kay, Harrison & Ford. Lemmon’s practice focuses on corporate, securities, and regulatory representation of commercial banks, thrifts, holding companies, and other financial institutions. Jackson Walker announced the election of Emilio Nicolas to its partnership. Nicolas is a content and information attorney. His practice includes entertainment, media, technology, and intellectual property litigation and transactional work, with a particular emphasis on copyright, trademark, and privacy law.

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continued from cover

Austin Bar’s Diversity Fellowship Program

in starting my legal career, especially for my goal to remain in Austin. I met so many great and wonderful people who I know will be excellent resources and references in my life forever. It was definitely a worthwhile experience that I am thankful for every day.” “I thought the Austin Bar Diversity Fellowship Program was an incredible opportunity,” said Markuz D. Griffie, also a 2017 participant. “The first year of law school moves so fast and you

never receive much feedback from a technical standpoint. Being able to spend five weeks at the district courthouse and be tutored by real attorneys and actual judges who do research and writing every day, and receive feedback on everything you do, was incredibly helpful to becoming a more proficient legal writer. The opportunity to sit in a court room and watch attorneys deliver arguments was the first point in my brief legal career where I felt like, ‘Wow, I can really do this.’ I spent the second half at Burns, Anderson, Jury, and Brenner. While there, I not only met some of the nicest and most intelligent people I’ve ever been around, but I was also able to truly see the effect the feedback from the courthouse had on my ability to do legal research and writing. Being at Burns Anderson also provided an opportunity to see the amount of work and preparation that goes into a court appearance, and introduced me to things I had never heard about in law school—like administrative panel decisions. I received an offer to return to Burns Anderson my 2L summer, which is an opportunity I would not have had if not for the Diversity Fellowship Program.” Rudy Metayer and Judge Orlinda Naranjo, in addition to Shepperd, Livingston, Dippel, and Nelson, made up the 2017 Diversity Fellowship Committee. This dedicated group worked hard to ensure each student received a rewarding and enriching experience as they took their first steps towards making their dreams of a legal career a reality. The committee is currently reviewing applications to select a new group of students for the summer of 2018. Law students interested in participating in 2019 should contact their preferred affinity bar association or the UT School of Law Career Services Office for more AUSTIN LAWYER AL AL information. APRIL 2018 | AUSTINLAWYER

Austin’s Legal Community Celebrates Dr. Seuss Reading Day Law-Related Education Committee Reads to Area Students

n Friday, March 2, 2018, the Austin Bar Association’s Law-Related Education Committee, Austin-area lawyers, and other interested community members, joined Literacy First and Lawyers for Literacy for Dr. Seuss Reading Day, sponsored by RetailMeNot. Participants gave at least an hour of their day to connect with AmeriCorps members giving a year of service in Austin elementary schools, observed part of a one-to-one literacy tutoring lesson, and read a Dr. Seuss book aloud to a delighted young child. Literacy First and Lawyers for Literacy would like to thank all those who attended for their

support of the program and Austin’s youngest readers. Lawyers for Literacy is a group of lawyers passionate about helping Austin’s most atrisk children learn to read. The group operates in support of Literacy First, a program that places highly trained AmeriCorps members in low-income schools to deliver intensive and effective tutoring. The goal is to advance the reading level of students in kindergarten through 2nd grade so they will be reading on grade level by 3rd grade. Interested in joining the fight against childhood illiteracy? Contact Sarah Lowery, Literacy First development specialist, at sarah. AUSTINLAWYER AL AL lowery@austin.utexas.edu.

LEFT: Judge Ami Larson reads to a student at Dr. Seuss Reading Day. ABOVE: Attorney Jennifer Jackson (left) and Literacy First tutor Audrey pose with a student dressed like the Cat in the Hat on Dr. Seuss Reading Day.

Lawyer Referral Service of Central Texas

he attorney volunteers had a very busy night during the Lawyer Referral Service’s February LegalLine. Five volunteer attorneys answered 66 calls during the two-hour program with a large volume of calls centered on consumer, employment, and family law questions.

LegalLine is a community-service project sponsored by LRS that provides free legal advice to the community, via phone, every first Tuesday of each month. If you would like to learn more on how to become a member of LRS, email referrals@austinlrs.org AUSTIN LAWYERfor more AL AL information.

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THIRD COURT OF APPEALS CIVIL UPDATE

Laurie Ratliff, a former staff attorney with the Third Court of Appeals, is board certified in civil appellate law by the Texas Board of Legal Specialization and a partner at Ikard Ratliff P.C.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during February 2018. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of March 3, 2018.

RESTRICTED APPEAL: Court reverses default judgment based on defective service. Worldwide Ventures, LP v. 3600 SC I, LLC, No. 03-16-00539CV (Tex. App.—Austin Feb. 7, 2018, no pet. h.) (mem. op.). Owner sued tenant and guarantor for breach of a lease agreement and obtained a de-

fault judgment. Owner unsuccessfully attempted service on tenant’s registered agent at his residence and place of business. Owner obtained an order for substituted service on guarantor, but not for tenant. Owner relied on its service on the secretary of state under Business Organizations Code §5.251. Secretary of state’s service attempts on tenant’s registered agent were returned, undeliverable. The court of appeals noted that default judgments must strictly comply with service. Owner did not attempt to serve tenant’s registered agent at its registered office as required by §5.251(1) (B) before seeking substitute service. Accordingly, the trial court lacked personal jurisdiction over tenant and the default judgment was void. The court vacated and remanded. GOVERNMENTAL IMMUNITY: Police report did not constitute actual notice of claim under TTCA. City of Killeen v. Worsdale, No. 03-17-00640-CV (Tex. App.—Austin Feb. 28, 2018, no pet. h.) (mem. op.). Plaintiffs sued city after fatal motorcycle accident that occurred when riders collided with a dirt mound on a road. City filed a plea to the jurisdiction, contending Plaintiffs failed to give notice of the claim. The trial court denied the plea. According to the court of appeals, actual notice requires

subjective awareness of city’s fault in causing the injury; it is not enough that city investigated the accident as part of routine safety procedures or that city should have known of its fault. Police officer’s report did not place responsibility on city for the dirt mound, the failure to warn, or for road maintenance. Accordingly, the report did not constitute subjective knowledge by city of Plaintiffs’ claims. The court reversed and rendered. TRIAL PROCEDURE: Conclusory statements fail to overcome Rule 91a motion. Ruth v. Crow, No. 03-16-00326CV (Tex. App.—Austin Feb. 23, 2018, no pet. h.) (mem. op.). Ruth sued defendants for malicious prosecution, intentional infliction of emotional distress, and conspiracy. Defendants filed a Rule 91a motion to dismiss. At the dismissal hearing, Ruth filed a supplemental petition and requested additional time to amend his petition. The trial court refused Ruth’s request and dismissed the case. The court of appeals noted that Rule 91a has no good-cause exception to modify its time constraints. In reviewing Ruth’s allegations, the court observed that Ruth was required to plead facts that, along with reasonable inferences, could support all elements of the causes of action. According to the court, “thread-

bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” The court concluded that Ruth’s petition did not meet this standard. The court affirmed. STATUTE OF FRAUDS: Emails did not satisfy signature requirement. Mitchell v. Mitchell, No. 03-1700318-CV (Tex. App.—Austin Feb. 16, 2018, no pet. h.) (mem. op.). In negotiating the resolution of their father’s estate, Kirk proposed that the brothers swap their interests in various land tracts. The proposed agreement was documented in several emails, but no agreement was signed. Kirk sued for specific performance. The trial court ordered that the emails constituted an agreement in compliance with the statute of frauds. Kirk contended on appeal that under the Uniform Electronic Transaction Act, the emails supplied the agreement’s terms and constituted his brothers’ signatures. The court of appeals concluded the Act had no application. The Act applies only when parties agree to conduct transactions by electronic means. Here, there was no agreement. The court rejected Kirk’s argument that the “from” field of an email satisfied the electronic signature requirement. The court reversed AUSTINLAWYER AL AL and rendered.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

The cases summarized are from August 2017 and subsequent histories are current as of March 1, 2018.

HANDCUFFING DURING TRAFFIC STOP: Officer’s decision to handcuff and frisk suspect during traffic stop was permissible, and suspect’s consent to search vehicle was voluntary. Cano v. State, No. 03-15-00485CR (Tex. App.—Austin Aug. 24, 2017, pet. ref’d) (mem. op., not designated for publication). During a traffic stop, Cano had consented to a search of his vehicle, and methamphetamine was found inside. Cano filed a motion to suppress, asserting that his consent to search the vehicle had been “tainted” by the officer’s actions in: (1) frisking Cano after he exited the vehicle; (2) searching Cano’s pockets after performing the frisk; (3) handcuffing Cano; and (4) prolonging

the detention beyond the time required to effectuate the purpose of the stop. The district court denied the motion to suppress, and the appellate court affirmed. The court concluded that the officer’s actions were justified by the circumstances surrounding the stop. These circumstances included Cano’s actions in opening the car door and placing his leg outside the vehicle upon parking, which, according to the officer, indicated that Cano posed a flight and safety risk. Another relevant circumstance was that Cano did not have his driver’s license with him at the time of the stop, which made it difficult for the officer to determine Cano’s identity. The court also concluded that the record supported findings that Cano had consented to a search of his pockets and that the stop was not unreasonably prolonged. Finally, the court held that Cano’s consent to search the vehicle was voluntary,

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based on circumstances during the stop that revealed an absence of coercion. In a concurring opinion, the concurring justice agreed with the majority that the officer’s actions were permissible and that Cano’s consent to search the vehicle was voluntary. However, the concurrence disagreed with the majority’s conclusion that handcuffing was permissible as part of an investigatory detention. Instead, the concurrence concluded that the handcuffing had elevated the interaction into an arrest but that the arrest was supported by probable cause because Cano had committed the crime of failure to display his driver’s license. ADMISSIBILITY: Fingernail fragment sufficiently authenticated. Washington v. State, No. 03-1500531-CR (Tex. App.—Austin Aug. 31, 2017, pet. ref’d) (mem. op., not designated for publication). Reynaldo Ortega was shot and killed outside his apartment. A video recording of the incident, taken from the apartment’s security camera, showed Ortega and the shooter engaged in a physical altercation outside Ortega’s vehicle shortly before Ortega was shot. Following the shooting, the vehicle was taken into police custody and processed. The vehicle was then released to the victim’s brother on a Saturday. The following Monday, the victim’s brother contacted the police, informed them that he had found “a piece of a torn fingernail” inside the vehicle, and delivered the evidence to the police. The police then reviewed the photographs that were taken of the interior of the vehicle and noticed, for the first time, what appeared to be a piece of fingernail on the floorboard. Subsequent testing revealed that Washington could not be excluded as a contributor to DNA that was recovered from the evidence. Washington objected to the admissibility

Zak Hall is a staff attorney for the Third Court of Appeals. The summaries 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.

of the evidence, asserting that the fingernail piece had not been properly authenticated. The district court overruled the objection. On appeal, the court determined there was sufficient evidence to support a finding that the fingernail piece that was delivered to the police had been left in the vehicle at the time of the shooting. This evidence included an enlarged photograph of the fingernail piece, the short amount of time that had elapsed between the vehicle being released to the brother and the brother delivering the fingernail piece to the police, and the video recording that depicted an altercation between the victim and the shooter outside the vehicle, which supported a finding that during the altercation, a fingernail piece had been torn loose and deposited on the floorboard. Although there was also evidence that could have supported a contrary finding that the fingernail piece had not been in the vehicle, the court concluded that the district court’s decision to admit the evidence was within the zone of reasonable disagreement and AUSTIN LAWYER AL AL affirmed the conviction. APRIL 2018 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Justice Prevails, By a Narrow Margin BY DAVID PETERSON

his installment is about principles of jurisprudence, with apologies. The en banc Fifth Circuit recently decided an important federal criminal case, United States v. Herrold, 14-11317. The majority opinion, in which eight judges joined, is 36 pages long. The dissent, by seven judges, is 19 pages long. The issue is described here as concisely as possible: Two recent Supreme Court decisions discuss how states define the crime of burglary, and whether prior state burglary convictions can massively enhance a federal sentence for simple possession of a firearm by a felon. Do those Supreme Court cases compel the Fifth Circuit to rethink whether Texas burglary can enhance these federal sentences? The majority cogently answers: yes, and we will hold that Texas burglary cannot so enhance these sentences on firearms convictions. Judge Higginbotham’s opinion is worth a read for its breadth of analysis, clarity, and persuasiveness. It tethers its approach to the recent Supreme Court case of Mathis v. United States. It particularly notes the Court has

said that lower courts should assume it means what it says. It even discusses in a footnote the humorous idea that lower courts should also assume the Court “means what it said about meaning what it says.” The dissent responds that the majority opinion upends long-settled precedent. Instead, what it would prefer to do is… upend other long-settled precedent. And how does it disagree with the majority’s employment of the Supreme Court’s recent guidance on the dispositive issue? It quite literally does not even engage on that issue. Two things are worth noting. First, the alleged concern by the dissent with precedent: the precedent the majority upends is a single panel case from last year, whereas the precedent the dissent would undo spans at least a decade and multiple Fifth Circuit opinions. Second, the dissent’s take on how the recent Supreme Court case Mathis affects the dispositive issue: it will not engage with the majority opinion or claim that it has the better view of the issue; it simply ignores it. The only passing reference to the analysis the Supreme Court has twice now told courts they must engage in

is to call it a “quagmire.” we are discussing the en banc I am gratified that the eightFifth Circuit bench. So what is judge majority got it right, and the fault line of this new—and did so persuasively. The seven very narrowly divided—split judges who dissented refused in the Court? I wouldn’t dare to acknowledge the binding hazard a guess in fewer than law of the highest court in the 500 words, but I will note that land. That does have a history the case could be reheard now in American jurisprudence. Inthat Judges Willett and Ho have deed, the recent near-election of AUSTIN joined the court. We may well LAWYER L AL Roy Moore, who had repeatedly findAout. done just that as an Alabama David Peterson is an assistant judge, shows history is not too federal public defender for the far behind us. Western District of Texas. Any Lest my last reference imply views expressed are his views that the issue here is one of only and not that of the Office of liberal versus conservative legal the Federal Public Defender. reasoning, let us remember that

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FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued from the U.S. Court Of Appeals for the Fifth Circuit. The summaries are intended as an overview; counsel are cautioned to review the complete opinions.

BREACH OF CONTRACT: Defendant’s reading of its contract with Plaintiff would have led to an absurd result, and therefore, the contract should have been interpreted differently. Star Financial, Inc. v. Cardtronics, Inc., No. 17-30258 (Feb. 2, 2018): Plaintiff entered contract with Defendant’s predecessor to process electronic transfers of ATM funds. The contract required Plaintiff to provide Defendant with accurate information, including a bank account for crediting withdrawn amounts, for terminal set-up forms and to notify Defendant of any changes. At one point, Plaintiff mistakenly designated an account belonging to a third-party for three terminals but provided corrected forms the next day. Defendant then failed to correct account information for two of the three terminals, causing a shortage of funds in Plaintiff’s account, which Defendant did not reimburse. The district court granted Defendant’s motion for summary judgment, finding that the contract did not require Defendant to ensure that the

terminal information was correct. The Fifth Circuit held that while the contract did not state Defendant’s obligations upon receiving a corrected set-up form, not reading in these obligations would lead to the absurd consequence that Plaintiff could never make changes to a set-up form, despite a provision to the contrary. Therefore, the Court held Defendant did have an obligation to use the correct account information after receiving the updated forms and reversed the grant of summary judgment. PERSONAL JURISDICTION /VENUE: Plaintiff’s claim for breach of a contract executed and performed in Ohio could not be tried in Texas, but Plaintiff’s claim for fraudulent misrepresentations made by Defendant during a phone call from Ohio to Plaintiff in Texas could be tried in Texas. Trois v. Apple Tree Auction Center, Inc.; Schnaidt, No. 16-51414 (Feb. 5, 2018): A third-party contacted Plaintiff, a Texas citizen, by phone several times about selling items through an auction with Apple Tree and Apple Tree’s owner, both Ohio citizens. Based on these calls, the parties agreed that Apple Tree would auction the items. Plaintiff traveled to Ohio, where he entered into a contract with Apple Tree for auctions to be held in Ohio. After poor results, Plaintiff brought suit in

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Texas, alleging that Defendant breached their contract and the owner misrepresented Apple Tree’s business during their calls. In a breach of contract claim, specific jurisdiction may be found when a foreign defendant has “purposefully directed” his activities at residents of the forum. The Fifth Circuit agreed with the district court in finding there was no personal jurisdiction because the contract was executed and performed in Ohio, and conference calls with Plaintiff in Texas were insufficient to establish jurisdiction. Conversely, in intentional tort cases, jurisdiction must be based on the defendant’s intentional conduct that creates the necessary contacts with the forum. The Court held that although the individual Defendant did not initiate the conference calls, he was the key negotiating party who made the alleged misrepresentations to Plaintiff during the calls. Therefore, the district court properly asserted personal jurisdiction over the Ohio Defendant on this claim. Finally, the Fifth Circuit held that the district court erred in dismissing the fraud claim for improper venue as the misrepresentations directed at Texas were a substantial part of the events giving rise to the claim.

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that the parking lot did not have the requisite number of spaces and lacked access ramps. Plaintiff testified he had visited the salon to get hair coloring for his wife but made no attempt to get out of the car because it was obvious he would not be able to enter. Plaintiff admitted he had not been back to the salon since then and did not present evidence that he had any intent to return. In affirming the district court’s dismissal for lack of standing, the Fifth Circuit held that Plaintiff failed to show that any alleged ADA violation by EMPLOYMENT: Plaintiff Defendant threatened him with failed to establish Article III future injury, as is required to standing for equitable relief AUSTIN establish standing for equitable LAWYER under the Americans with DisAL AL relief. abilities Act (ADA) as he failed to demonstrate an actual or imminent future injury from his one visit to Defendant’s place of business. Deutsch v. Annis Enterprises, Inc., No. 17-50231 (5th Cir., Feb. 9, 2018): Plaintiff, a paraplegic requiring the use of a wheelchair, filed 385 lawsuits pursuant to the ADA in 306 days. This particular case was against a woman’s hair salon. Plaintiff alleged the salon’s threshold exceeded ½ inch and APRIL 2018 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN AUSTIN KAPLAN KAPLAN LAW FIRM

Hey You, Get A Job!

hat is the question I get most frequently from new AYLA members? “How do I get a law job in this town?”1 Entry-level job openings here are so hard to find. The reason is simple: there are seemingly always more young lawyers who want to work here than there are available jobs. UT School of Law graduates around 400 highly qualified law students each year, many of whom would be willing to take a pay cut to practice law here while on a paddleboard in the lake.2 A number of graduates from places like Columbia, Stanford, and a law school in Boston, also have the same idea, as do some Fifth Circuit clerks and a handful of Supreme Court clerks. I absolutely applaud these accomplished job-hunters, but the glut of cheerfully overqualified supply makes it hard for us mere mortals to find gainful work in this town. Fear not. Here are some tips for scoring the job of your dreams: NETWORKING

I wasn’t born in Austin, but I got here as soon as I could. The story goes: my fiancée, Liz, and I lived in Chicago. She was admitted to the anthropology PhD program at UT and left me to forge my way through ice, 20

AUSTINLAWYER | APRIL 2018

snow, and inebriated Cubs fans by myself. I knew I had to follow her down here. But, my firm at the time did not have an Austin office. So, I figured I just needed to make a simple lateral move to a new, comparable firm in Austin. Easy! A Biglaw Chicago lawyer at the time, I did a very Biglaw thing: I researched the biggest firms in Austin and blindly sent résumés and cover letters to their managing partners. Hey partners, look at me! I have already taken a deposition or two, so, here I come! I quickly learned this was not the most effective way to get a job here. All the while, I began to realize I needed to talk to as many people as possible to find out where the jobs were hiding. NETWORKING

A wise, job-search guru once said: “relationships are all there is.” This is as true now as ever. Many jobs never get posted— they are awarded through word of mouth. This is especially true at smaller firms, which make up a large portion of our legal ecosystem. I joined AYLA and started talking to as many people as possible about jobs. It is hard to find the courage to tell people you are unemployed or underemployed, but you should do it. People can’t help you if they don’t know. You should also tell folks what areas interest you, what you already worked on, and who you have worked with. This community is endlessly supportive. Use that to your advantage! NETWORKING

Be seen. Go out, meet people, go

to Docket Call, talk to folks at the Diversity Mixer, find out who is doing what and who knows who. I have found that meeting people for coffee is one of the best ways to do this. A great tip someone gave me that I am giving you is: at each coffee, ask for the names of three other lawyers you should meet next for coffee. Then, ask those people for three names. Next thing you know, you’ll have a huge network (and possibly their networks) helping you look for a job. It works. PERSEVERANCE

A wise local guru once said: “Short-term focus with longterm vision.” Have a short-term and long-term plan, and if you

can, work backwards from your goal to the present. Do good work no matter what you are working on. Set your career goal, figure out each step to get there, and take it one step at a time. FOLLOW-UP

Be persistent! Try these tips out, then try them again. Once you succeed, look for me at the next Docket Call and let me know AUSTIN LAWYER AL AL what worked! Footnotes 1. “Is the bar tab still running?” and “Is that your real name?” are a close second and third. The answer to both is yes. 2. This is also my goal, and I once bought a waterproof keyboard to try it. That didn’t quite work out, but I haven’t given up on living this dream.

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AUSTIN YOUNG LAWYERS ASSOCIATION

Candidates Announced for AYLA Board of Directors Elections to be Held May 11-25, 2018

he Austin Young Lawyers Association announces its candidates for the 2018-19 Board of Directors. A link to the electronic ballot will be sent in an email from BallotBox Online on Friday, May 11, 2018. Please add austinbar@ballotboxonline to your account so it gets past your spam filter. The last chance to vote will be at the annual member meeting conducted at the 4th Friday CLE on Friday, May 25, 2018. The following candidates are running for the AYLA officers and board of directors. The new board will take office on July 1, 2018, along with Jorge Padilla, who will serve as AYLA’s president. Padilla is partner in Jackson Walker’s litigation section. He has served on the AYLA board as a director, secretary, and treasurer. Padilla is currently a member of the 2018 Leadership Austin Essentials class and was recently selected for the 2018 Fellows Program of the Leadership Council on Legal Diversity. OFFICERS The only contested race for the 2018-19 board of directors is for the office of secretary. Candidates for secretary are Erin Smith Bennett and Rachael Jones. Bennett is a policy advisor in the Office of the Governor. She has been a member of AYLA since 2011 and has served as a director for the past two years. She chaired the Judicial Reception, Publications, and Membership committees, and is a graduate of the 2014 Austin Bar/ AYLA Leadership Academy. Jones has been actively involved in AYLA and the Austin Bar since 2014. She has served on the AYLA board since 2016,

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and has been a co-chair of the CLE, Marketing, and Holiday Baskets/Reindeer Games committees. Rachael is an Austin Bar/AYLA Leadership Academy graduate and a semi-regular contributor to Austin Lawyer. Sandy Bayne is running unopposed for president-elect. Bayne graduated from the 2013 Austin Bar/AYLA Leadership Academy. She served as co-chair of AYLA’s Judicial Reception for the past three years, and co-chaired Runway for Justice in 2017 and 2018. Bayne is the founding partner of BayneLaw, where she focuses on general healthcare and health insurance. Sandy is a member of the Barbara Jordan Inn of Court. David King is running unopposed for treasurer. King has been an AYLA director since 2015, and currently serves as secretary. King was named Outstanding Director for 2015-2016, and he serves as cochair of AYLA’s Bench Bar and Holiday Programs committees. King is an associate at Graves, Dougherty, Hearon & Moody. The following are running unopposed for four two-year positions on the board of directors: DIRECTORS Michael Choate is an associate at McElroy, Sullivan, Miller & Weber where he practices energy and environmental law. He currently serves on the AYLA Docket Call and Diversity Bar

TOP: Bayne, Bennett, Choate. MIDDLE: Harp, Jones, King. BOTTOM: Nelson, Padilla, Rashidi,

Fellowship committees. Michael is a member of the Oil and Gas, Administrative, Legislative, and Environmental sections of the Austin Bar. Sarah Harp is an assistant attorney general and practices criminal appellate law. She serves on the Docket Call and Runway for Justice committees, and is the vice chair of Outreach for the Jordan Inn of Court. She also volunteers as a mock trial judge at UT and the YMCA. Eric Nelson is an associate at Warren & Lewis and focuses primarily on tax and estate planning and probate law. He was a member of the 2017 Austin Bar/ AYLA Leadership Academy.

Kayvon Rashidi is a University of Texas School of Law graduate, and member of the 2017 Austin Bar/AYLA Leadership Academy. He practices primarily family law. These board members will join directors Francesca Di Troia, Blair Leake, Brittani Miller, and Monica Stallings, whose AUSTIN LAWYER AL AL terms expire in 2019.

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PRACTICE POINTERS

Marketing Yourself: Reinventing Networking BY FRANKLIN HOPKINS

often hear attorneys say, “I just don’t know how to bring in business.” Or, “I don’t know how to go about getting potential clients.” The truth is, no one does at first. Like anything with practicing law, trying to bring in business takes practice. Most importantly, it takes patience. Patience in understanding that there will be failure. Failure in learning what effort does and does not generate business. No attorney has been 100 percent successful with every networking attempt he or she has made. I failed multiple times and I still fail today. However, the few times I have been successful, it has paid dividends. There is no automatic method to generating business. However, there are a few means by which you can focus your networking efforts that I truly believe, with time, will generate clients for you. PRACTICE AREA

First, you need to decide what practice area (i.e. wills and estate) you want to focus on. Then get out and meet other attorneys in your practice area as they will be the best source of business for you. TYPE OF CLIENTS

Second, you need to decide the type of clients you are seeking. Individuals: If they have a cer-

tain trade or license, contact the particular trade group or professional association that represents that field to speak at their events or provide an informational session for their members. Businesses: All businesses have some type of association that pertains to their particular line of business. Contact those associations about presenting to their members on a topic specific to that industry. Insurance Carriers: Figure out which carriers insure your type of clients or perhaps the particular trade or industry in which you have experience. Reach out to those carriers and promote your particular skillset and how it relates to the business of their insureds. WHAT YOU CAN DO GENERATE REFERRALS

Generate referrals from co-counsel. You may be surprised how many times an attorney in your field of law has a conflict or is too busy. They might have three names of attorneys they give in your field. You need to be one of those people. Send a simple email after building a relationship: “Dear Jack, I enjoyed working on ABC case with you. If you ever have any questions in the construction law area, just email me. Also, if you or another attorney has a conflict, please feel free

to send potential clients to me. Lastly, I would be delighted to co-counsel and assist you with a matter in the future.” CREATE AN AVVO PROFILE

The great thing about AVVO is you can get clients to post a review about their experience with you (particularly after a win). These client reviews increase your AVVO rating. You want to be one of those few attorneys in Austin with a 10.0 rating in your field. GOOGLE YOURSELF

If I performed an internet search for “Austin employment law attorneys,” would your name appear on the first two pages? If not, and you want to gain clients in the Austin area who have an employment law issue, you need to work at it. You can embed words on your firm’s website. These words are not visible on the page itself, but when a potential client searches using those words, they are directed to your website. You can search online to learn how to do this. VOLUNTEER AND SPEAK

Participate on the planning committee of the UT and State Bar CLEs. • These are usually statewide CLEs for your practice area. • You need to volunteer and speak at these CLEs. PARTICIPATE IN YOUR SPECIALTY

Actively participate in the Austin Bar/State Bar section for your practice area, and join AYLA as well. This means becoming a section officer and volunteering to get speakers for your section meetings, etc. Do not just be a dues paying member, as that, in and of itself, does little to generate clients.

Franklin Hopkins is a principal with Germer Beaman & Brown. Board certified in administrative law, he represents clients in front of numerous state and federal agencies.

APPLY FOR AN INN OF COURT

Apply for membership in an Austin area Inn of Court. Austin has multiple Inns of Court. Inns of Court vary in size, but all have the goal to examine issues related to ethics and professional conduct in the field of law. Not only are they filled with friendly people ready to mentor, but they also include attorneys from a wide array of practice areas. JOIN LEGAL FACEBOOK GROUPS

Attorneys are always posting, “does anyone know a real estate attorney in Austin?” There are always five to seven names given by fellow attorneys. GET TO KNOW OPPOSING COUNSEL

Maintain a relationship with opposing counsel after a mater concludes. Invite them to lunch. Remember, networking to bring in clients takes time. Do not get discouraged. Change course when you need to, but you will see that as your name gets outLAWYER there more, referrals AUSTIN AL AL will follow. APRIL 2018 | AUSTINLAWYER

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