Austin Lawyer, April 2020 by Austin Bar Association

austinbar.org APRIL 2020 | VOLUME 29, NUMBER 3

STATEMENT FROM THE AUSTIN BAR ON COVID-19 The Austin Bar Association is here to help during the COVID-19 pandemic. We will be sharing news that relates to our legal community as soon as we receive it. News will be shared online at austinbar.org, in Bar Code, by email, and on social media. Please follow us on Facebook and on Twitter (@theaustinbar) for updates.

At press time, the Austin Bar office is closed. Staff is working remotely. The Austin Bar, like the State Bar of Texas, is cancelling, postponing, or going online with all live events through at least May 10, in line with the latest guidelines from the CDC. Events scheduled after that will be evaluated on a case-by-case basis.

Austin Bar Board and Officer Candidates Announced MAY 1 ONLINE VOTING ENDS 5:00 p.m. CST ELECTRONIC BALLOTS EMAILED FROM BALLOTBOX ONLINE:

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Wooten

he Austin Bar Association’s nominating committee has announced its slate of officer and board candidates for the 2020-21 bar year. OFFICERS There are no contested races for officers. The new officers making up the executive committee for 2020-21 will be President Kennon Wooten, President-Elect David Courreges, Secretary Amanda Arriaga, and Treasurer Hon. Chari L. Kelly. Their terms begin on July 1, 2020.

Courreges

President Kennon Wooten has been on the Austin Bar’s board since 2013 and has served as the Austin Bar’s treasurer, secretary, and president-elect. She was president of the Austin Young Lawyers Association in 2013 and editor-in-chief of Austin Lawyer between 2013 and 2019. In addition to local-bar involvement, Wooten assists the State Bar of Texas with CLE events and serves on the State Bar’s Court Rules Committee, the Supreme Court Advisory Committee, and the editorial board for The Advocate. She is a member of

Arriaga

the American Law Institute and a partner at Scott Douglass & McConnico, where she focuses on civil litigation and appeals. President-Elect David Courreges is a sixth-generation Austinite who believes in being a steward of the Austin community. He currently serves as secretary of the Austin Bar, having previously served as treasurer and as a two-term director. He has co-chaired the Austin Bar’s Legislative Committee, Law– Related Education Committee, and the Wildfire Legal Response team, and is the co-founder of the Austin Bar/AYLA Leadership Academy. He served as president of AYLA from 2014 -15 and as vice president of the Texas Young Lawyers Association from 2010-11, and has represented the Austin Bar as a member of the Travis County Civil and Family Courthouse Bond Advisory Com-

Kelly

mittee and the City of Austin’s Downtown Community Court Advisory Board. He is the Director of Legal and Compliance, and Senior Corporate Counsel at University Federal Credit Union. Secretary Amanda Arriaga has served as treasurer of the Austin Bar since June of 2019 and served as chair of the Austin Bar’s Gala Committee for the past two years. She was president of AYLA in 2014 and has been active on the Austin Bar board since 2015. Treasurer Hon. Chari L. Kelly is a U.S. Army veteran and a justice on the Texas Third District Court of Appeals. She is a former AYLA president and graduate of the Austin Bar/AYLA Leadership Academy. Before her election as a director to the Austin Bar board in 2018, she served as the chair for AYLA’s Runway continued on page 9

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CONTENTS

AUSTINLAWYER APRIL 2020 | VOLUME 29, NUMBER 3 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

Austin Bar Board and Officer Candidates Announced

President’s Column

MAMAs and Law Students Build Connections

Briefs

11 Austin Black Lawyers Association Holds Legacy Luncheon Andrea Pair Bryant Legacy Luncheon Honors Two Austin Attorneys

Be Well

Opening Statement

13 Keystone Bank Joins Prime Partner Bank Program Program Boosts Funding for Legal Aid in Texas

Third Court of Appeals Civil Update

Third Court of Appeals Criminal Update

16 4th Friday Free Member-Only CLE Recap Asylum in the U.S.: Our History and How You Can Help

Federal Civil Court Update

Federal Criminal Court News

18 Travis County Civil & Family Courts Facility Update

AYLA

27 Seeking Nominations for Regina Rogoff, Professionalism Awards

Practice Pointers

14 Austin Bar’s Diversity Fellowship Program Enters Eleventh Year

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

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STREAM @AustinBarAssociation

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NEWS & ANNOUNCEMENTS

EVENTS & MORE

Austin Bar/AYLA Updates on COVID-19

As of press time, the Bench Bar Conference scheduled for May 1, 2020 and all other live events scheduled at least through May 10, 2020 have been postponed. Please stay tuned to austinbar.org, Bar Code, emails, and social media for updates on all upcoming events.

Visit austinbar.org to see the latest news and updates from area courts and the legal community.

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION D. Todd Smith �� President Kennon Wooten �� President-Elect David Courreges �� Secretary Amanda Arriaga �� Treasurer Adam Schramek �� Immediate Past-President

AUSTIN YOUNG LAWYERS ASSOCIATION Sandy Bayne �� President David King �� President-Elect Rachael Jones �� Treasurer Blair Leake �� Secretary Jorge Padilla �� Immediate Past-President

EXECUTIVE OFFICES 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward........................... Executive Director Nancy Gray................................. Managing Editor Debbie Kelly............................... Director of AYLA Jennifer Hopgood.................... Editor-in-Chief Rachael Jones............................ Copy Editor

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Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Ste. 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 of Texas Federal Court and the Texas 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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PRESIDENT’S COLUMN D. TODD SMITH, SMITH LAW GROUP

The Austin Bar’s Mission

f you’ve worked in or managed an organization, you know about mission statements. They express an organization’s reason for being and are intended to help focus attention and resources on that purpose. A mission statement provides a handy reference point when evaluating new ideas or programs. Well-led organizations use them to guide most everything they do. If a proposal or activity doesn’t comport with the mission statement, it risks lessening the organization’s overall effectiveness. The Austin Bar Association’s mission statement is: “Enhancing the legal profession, administration of justice, and our community through education, networking, and public service.” There’s a lot to unpack in those 16 words. Breaking the statement down into two basic components is helpful. Enhancing the legal profes-

sion, administration of justice, and our community… We are a voluntary local bar association. No one is required to join as a condition of practicing law. Our members want to better themselves, and thus the profession. Participating in the local legal community helps achieve these goals. By bettering ourselves in ways we’re self-motivated to pursue and accomplish, we equip ourselves to influence the administration of justice for our clients and to impact our broader community. Our better selves have lives outside the legal profession and show the world that real lawyers aren’t like those they read about in the news or see portrayed onscreen. The local aspect also helps foster community within the profession. Technology purports to keep us connected, but in truth, we live in an increasingly isolating and disconnected world. By helping us relate to each other on a local level and in real life, the Austin Bar creates a sense of unity among us. . . . through education, networking, and public service. When you think of the Austin Bar, these three things likely come to mind. Week after week, we put on

Our members want to better themselves, and thus the profession. Participating in the local legal community helps achieve these goals. excellent live CLE programs to educate our members. Thus far in 2020, we’ve sponsored 57 live CLE sessions, providing a total of 73.5 accredited hours, plus offering more than 60 hours of FREE online CLE at austinbar. org for our members only. This programming is so important that we’ve changed the way we communicate about it and have made it the subject of a weekly Upcoming CLE email, sent each Thursday (separate from the Bar Code e-newsletter, sent on Tuesdays). Our CLE programs bring people together and thus create opportunities to network and connect on a personal level. And we

offer abundant non-CLE networking opportunities too. Organized social events and committee work allow us to meet and mix and get to know each other better. Finally, our public service programs are among our best features. Members seeking pro bono opportunities need look no further than our award-winning CANLAW clinic or the Veterans Legal Assistance Program coordinated with the Austin Bar Foundation. These are just two examples of how our members are serving the public and making a difference for those in need. Is the Austin Bar fulfilling its mission? I sure think so. How AUSTIN LAWYER aboutAyou? L AL

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MAMAs and Law Students Build Connections

or the fourth consecutive year, the Mother Attorneys Mentoring Association (MAMAs) hosted the UT Women’s Law Caucus for its “Parenting While Practicing” event. The annual event gives law students a chance to meet lawyers working in a wide variety of settings and practice areas who are balancing their careers with the rest of lives as parents—each in her own way. “We’re giving our members a chance to share their own unique insights about life as a lawyer and a parent, and showing prospective lawyers that there is no ‘right’ way to do either,” said MAMAs board member Lauren Schoenbaum. The event is the brainchild of MAMAs board member Jessie Neufeld, who has worked every year with a co-organizer from the UT Women’s Law Caucus to put on the event. “Watching so many amazing women build their

careers on their own terms and be incredibly successful was something we wanted to celebrate and expose young women lawyers to as well,” Neufeld said. “There is nothing more satisfying than watching and listening to a room full of 50+ women lawyers TOP: MAMAs members and UT Law students attend the deeply engaged “Parenting While Practicing” event. RIGHT: (L-R) UT Law in conversation 2L students Ashley Rogers and Keleigh Carver. about the joys and challenges of balancing family life and the legal proMAMAs extends a special fession. And knowing those about thanks to the event’s sponsors: to begin their careers are getting Baker Botts, DLA Piper, Naman sage advice from our members Howell Smith & Lee, Beckstead who have lived and breathed it Terry, and the Law Office of for years, even decades, and want AUSTIN LAWYER Carly Gallagher Murray. to help—was very gratifying.” AL AL

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Austin Bar Board and Officer Candidates Announced continued from cover

Boykin

Christian

for Justice from 2015-17. She is board-certified in criminal law by TBLS and the National Board of Trial Advocacy and also serves on the Litigation Council for the State Bar of Texas. BOARD OF DIRECTORS There are six candidates vying for four seats on the Austin Bar’s board of directors. The director positions are for two-year terms. 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 by Friday, April 10, 2020. A link to the electronic ballot will be sent to Austin Bar members on April 13, 2020 by Ballot Box Online. The email will be sent from noreply@ballotboxonline.com Members are encouraged to add this address to their safe-senders list to ensure that the message doesn’t go to their spam filters. Online voting will end at 5 p.m. on May 1, 2020. Four of the following candidates will begin their terms on July 1, 2020, joining current board members Rob Frazer, Leslie Hill, Megan Honey Johnson, and Mary Ellen King, whose terms will expire in 2021. Leslie Jane Boykin, owner of the Law Office of Leslie J. Boykin, is a solo practitioner defending clients accused of crimes in the Central Texas area. She has been involved with AYLA and the Austin Bar since 2004. She has served on the Austin Bar’s Law-Related Education Committee and is a 2019 graduate of the Austin Bar/AYLA Leadership

Gamble

Academy. She served on the AYLA board of directors from 2013-15, co-chaired the AYLA Retro Vegas fundraiser and the Reentry Committee, and served as a volunteer at the Women’s Resource Fair and Expunction Expo. Boykin is a member of the Austin Bar’s Solo/Small Firm and Criminal Law sections. In addition, she is a member of the Barbara Jordan Inn of Court, the Texas Bar College, the Texas Criminal Defense Lawyers Association, and the Austin Criminal Defense Lawyers Association. She is a Fellow of the Texas Bar Foundation and a founding member of the DUI Defense Lawyers Association. Bill Christian is a shareholder at Graves, Dougherty, Hearon & Moody. He has practiced civil litigation in Austin for over twenty years and is board-certified in civil appellate law. Christian is a member of the Austin Bar’s Civil Appellate Section, serving as the section’s chair in 2017. He is a Fellow of the Austin Bar Foundation. He served on the board of Volunteer Legal Services for ten years and was VLS board president in 2016. Judge Maya Guerra Gamble is the presiding judge of Travis County’s 459th District Court. Prior to taking the bench, she had a solo practice representing children and parents in child protective services cases; represented whistleblowers as of counsel at O’Connell & Soifer; prosecuted child pornography and child exploitation cases for the Texas Attorney General; sued companies committing fraud against the United States for the Department

Meredith

Murray

of Justice; and clerked for Judge Richard Cudahy on the 7th Circuit. She has served on many boards and committees, including the Austin Bar’s CAFA section board, the Texas Supreme Court’s Children’s Commission’s Standing Committee on Foster Children and Education, the Travis County Child Welfare Board, the Capitol Area Council Scouting BSA Executive Board, and the Austin High School Continuing Education Fund Board. Amy Meredith is the Chief Prosecutor for the Public Integrity Unit of the Travis County District Attorney’s Office. Meredith has been with the Travis County Attorney’s Office since 2004 and has spent the majority of her career in trial court. Currently serving as an Austin Bar board member, she is seeking re-election for her second term. Meredith has been an active member of the Austin Bar throughout her entire career. She currently serves on the Bench Bar committee and is a member of the Criminal Law Section, of which she is a past chair. She has participated in numerous Austin Bar committees and is currently a member of the Austin Black Lawyers Association and the Travis County Women Lawyers’ Association. Carly Gallagher Murray is a board-certified attorney practicing family law in Central Texas, primarily in Travis and Williamson counties. Murray is a former Judge Suzanne Covington Pro Bono Service Award honoree and has been a member of the Austin Bar since 2008 and the Austin Bar’s Family Law Section since

Moore

2010. She is a board member of the Mother Attorneys Mentoring Association (MAMAs), through which she has participated as a UT Women’s Law Caucus mentor and has helped to sponsor events connecting female law students with working attorney moms. She enjoys participating in mock trial and moot court, and since 2016 she has served as both a sparring attorney and program judge with the UT School of Law Advocacy Program. Craig Moore is an Assistant District Attorney for Travis County. He was a member of the LeadershipSBOT Class of 2014-15, and he has served as the Project Reentry Ambassador and Government Representative for AYLA. Moore was co-chair of the Austin Bar’s 4th Friday Free Members-Only CLE Committee from 2017 to 2019. He has served for the State Bar of Texas on the Public Affairs, Criminal Pattern Jury Charges, and District 9 Grievance committees. He is a member of the Austin Black Lawyers Association and the Robert W. Calvert American Inn of Court. In 2018, the Austin Bar presented Moore with the Regina Rogoff Award for Outstanding AUSTIN LAWYER Public Sector Service. AL AL

APRIL 2020 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Justin Reid Barnes Marianne Barth Abigail Chacon Stephanie Criscione Michael Cruciani James Earl John Escamilla Laurence Granite Eileen Lawrence Jeffrey Mecom Ethan Nutter Josh Reyna Soniya Schuneman Ian Steusloff Tucker Villarreal Robert Watt Constance Westfall Taylor Wood Benjamin Zinnecker

TOP: Axe, Clarke, Courtney, Dyar, Franco, Galton, MIDDLE: Haney Johnston, Hernandez, Jones, Paul, Ressler, Wynne Ressler BOTTOM: Rodgers, Rose, Schoenbaum, Seal, Treviño

NEW TO THE OFFICE

Michael Best announced the addition of RWR Legal into its Austin office operations. Rick Ressler, RWR Legal’s managing general counsel, will step into the leadership role as Michael Best’s new Austin office managing partner; and Shari Wynne Ressler will join Michael Best as a partner focusing on strategic development. Both will be members of Venture Best®, Michael Best’s team dedicated to counseling entrepreneurs, investors, emerging companies, and start-ups. McGinnis Lochridge announced five new attorneys have

joined the firm’s Austin office: partners Al Axe, Keith Courtney, Lisa Dyar, and Derek Seal, along with associate Lecelle Clarke. The group brings decades of experience involving a wide array of environmental issues including permitting, enforcement, site assessment, remediation, and compliance. They also have significant administrative law, litigation, and regulatory experience.

business matters.

Douglas J. Paul has also joined McGinnis Lochridge as partner, along with associate Emily R. Franco. Paul and Franco are in the firm’s Estate & Probate Practice Group. Paul focuses his practice on estate planning through the use of trusts, family business entities, and life insurance. Franco advises clients on estate planning and probate issues, drafting wills, trusts, powers of attorney, and more.

The Austin Under 40 Awards recently announced their list of 2020 finalists. Winners will be announced at the Austin Under 40 Awards on May 16, 2020. The list included the following Austin Bar members:

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Philip Rodgers became a partner in Fritz, Byrne, Head & Gilstrap. Rodgers is a business lawyer whose practice covers a broad range of areas, industries, and transactions. His focus is on corporate, real estate, and general

Jackson Walker announced the election of 11 new partners in February. Among them were Austin attorneys Denise Rose and Carlos Treviño. Rose focuses her practice on government relations, public policy, and regulatory law, while Treviño handles corporate and securities matters. AWARDS

• In the Civics, Government, and Public Affairs category: Bianca Garcia, Denise Hernandez, and Judge Aurora Martinez Jones • In the Legal category: Rick Flores, Noah Galton, Caitlin Haney Johnston, and Lauren Schoenbaum

Austin Black Lawyers Association Holds Legacy Luncheon Andrea Pair Bryant Legacy Luncheon Honors Two Austin Attorneys

n Feb. 28, 2020, the Austin Black Lawyers Association (ABLA) honored Professor Tracy W. McCormack and Ashton G. Cumberbatch, Jr. at the Andrea Pair Bryant Legacy Luncheon held at Chateau Bellevue. The luncheon is named after Andrea Pair Bryant, an attorney who made significant contributions to the African-American community and to ABLA. Professor McCormack was introduced by the Hon. Eric Sheppard, who spoke about McCormack’s extensive litigation experience prior to teaching at the UT School of Law, her service as a mentor to students, and her advocacy at all levels of trial and appellate courts. Cumberbatch was introduced by Rev. Joseph C. Parker, Jr., who discussed Cumberbatch’s focus on holistic community engagement—no

ABOVE LEFT: (L-R) Judge Eric Shepperd; Andrea Pair Bryant honoree Ashton G. Cumberbatch, Jr.; and ABLA President Ayeola Williams. ABOVE RIGHT: (L-R) Past Andrea Pair Bryant Legacy honoree Art Walker; the Hon. Rudy Metayer; Andrea Pair Bryant honoree Prof. Tracy W. McCormack; Rev. Joseph C. Parker, Jr.; and ABLA President Ayeola Williams.

matter where he was employed. This includes his present firm of McGinnis Lochridge as well as past roles at the DA’s office, as police monitor for the City of Austin, as police advisor for Austin Mayor Steve Adler, and as an executive with the Seton Healthcare Foundation. ABLA President Ayeola

The luncheon is named after Andrea Pair Bryant, an attorney who made significant contributions to the African-American community and to ABLA. Williams also honored ABLA Past-President April Griffin for

her volunteering time and AUSTINher LAWYER her service to ABLA. AL AL

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BE WELL

How to Not Get Away with Suicide BY EILEEN LAWRENCE

Eileen Lawrence is a frequent presenter on ethics and public procurement, a former faculty member at the UNC School of Government, and a native Austinite. She practices estate planning with Ibekwe Law, PLLC.

t was 2017, the day before Thanksgiving, and I was in Fargo, North Dakota. (My then-husband had moved us there from Texas a few months earlier.) I’d just put our two girls to bed, and as I crept out of their bedroom I heard my husband and his parents, who were visiting for the holiday, talking and laughing in our basement. I pulled on my heavy coat, my gloves, and my snow boots, and walked out into the snowy darkness. I felt tears freezing against my face. I was so unbearably lonely. And I dreaded the thought of going back home, where the people there made me feel even lonelier. I remember when I decided to just keep walking. I would keep walking until I was too tired to keep going, and then I could just lie down in the snow and sleep. It would be so easy, I thought, and I wouldn’t have to go back home. So I kept walking, boots sinking in the snowdrifts, towards a cold and quiet death. And then, a few blocks later, a question hit me: What would my girls do when they couldn’t find me in the morning? I slowed my steps. How could I take their mother from them? I stopped and turned around. The tears 12

AUSTINLAWYER | APRIL 2020

fell again as I walked back to my house, feeling like I’d given up. A few days later, I asked my doctor for a new anti-depressant. It took trying two more anti-depressants, a new therapist, and a divorce for my depression to get better, but here I am, so thankful that I didn’t lose everything that night in the snow. Your depression story—or your friend’s or loved one’s—probably doesn’t look like mine. But I’ve learned a lot about depression in the past few years, so I’m going to tell you what to watch out for. Depression is a liar. Its lies are the most believable and insidious lies you’ve ever heard, because they sound and feel exactly like your own thoughts. The same inner voice that tells you, “It’s time to brush your teeth,” or “I’d really like pizza for dinner tonight,” starts to tell you things like, “You have nothing to look forward to today,” and “This chocolate cake you used to love tastes like sand.” At first, these lies are infrequent and mostly harmless, so they don’t alarm you. Eventually, though, they get more frequent and more outrageous and they crowd out all of your rational thoughts. Depression also distorts your reality. Everyone else looks happy and successful; you’re the only one who’s miserable, and that’s because you don’t deserve happiness. If you were a better person, if you tried harder, you wouldn’t be like this. It doesn’t matter what the reality is—all of the evidence in the world can’t compete with the lies that depression has crammed inside your brain. And if you don’t get help, those lies will kill you. So if you have a friend, or colleague, or loved one who seems to have lost their way, if they seem sadder than usual, or less social, or if they seem to be pushing everyone away, don’t give up on them. Reach out to them regularly to ask them how they’re doing.

Depression is a liar. Its lies are the most believable and insidious lies you’ve ever heard, because they sound and feel exactly like your own thoughts. Listen to them. Encourage them to find a therapist. If they’re a lawyer, tell them to contact the Texas Lawyers’ Assistance Program (TLAP, tlaphelps.org). If you’re struggling with depression right now, know that life will get better. Some day you will not dread waking up every morning. You will experience joy again. You’ll be excited about the future. I promise. So, how do you get rid of depression? Confide in a friend who’s struggled with depression themselves, someone who will listen and cheer you on. Contact TLAP. Find a good therapist. Work with your doctor to find a medication and dosage that works best for you. Whatever you do, don’t give up on yourself. If you feel like you’re losing the battle, reach out to a friend, TLAP, or the suicide prevention hotline at 1-800-273-8255. If you’ve lived with depression, I encourage you to be open with your friends and family about

how it has affected your life. Living with depression, and surviving it, takes tremendous strength and courage. You have nothing toAUSTIN be ashamed of. Keep LAWYER L AL fighting. We needAyou. The Austin Bar Association is committed to supporting all lawyers in our community. This year we have spearheaded mental health outreach in our attorney community through our Lawyer Well-Being Committee. Please go to austinbar.org/lawyer-well-being for more information. The Austin Bar also provides financial help for Austin-area attorneys seeking mental health support through the Justice Mack Kidd Fund. Information on the fund can be found at austinbar.org, Click on the “Foundation” tab, and go to “Programs.” Additionally, TLAP offers confidential support for lawyers suffering from depression and other mental health issues. Go to tlaphelps.org for information.

Keystone Bank Joins Prime Partner Bank Program Program Boosts Funding for Legal Aid in Texas

he Texas Access to Justice Foundation (TAJF) proudly welcomes Keystone Bank—with locations in Austin, Bee Cave, and Ballinger—as the newest member of its Prime Partner Bank program. Prime Partner banks and credit unions make a direct impact on the funding available to help low-income Texans with their civil legal issues by voluntarily paying higher interest rates for Interest on Lawyers’ Trust Accounts (IOLTA). All attorneys who handle client funds are required to keep those funds in IOLTA accounts until they can be made available to a client. TAJF receives funding from the interest generated by these accounts and uses the money to distribute grants to legal aid providers throughout Texas. This

funding provides legal assistance to more than 150,000 Texas families each year. “Many Texans face serious legal issues, such as escaping situations of domestic violence or avoiding foreclosure, and simply do not have the resources to hire an attorney,” said Richard L. Tate, chair of the board of directors for TAJF. “By paying higher interest rates on IOLTA accounts, Keystone Bank is helping ensure that low-income Texans have access to life-saving civil legal services.” Due to low interest rates since 2007, an estimated $156 million in funding for legal services for low-income and disadvantaged Texans has been lost in IOLTA. Prime Partner banks pay 75 percent of the Federal Funds target rate interest on IOLTA accounts, which is above and beyond the

eligibility requirements for banks participating in the IOLTA program. “Keystone Bank is committed to making our community a better place to live and work,” said Jeff Wilkinson, Keystone Bank CEO. “We are excited to join the Prime Partner Bank program to help improve and stabilize the lives of disadvantaged Texans who need legal help.” Approximately 5.5 million Texans qualify for legal aid, and many are turned away simply because legal aid providers do not have the resources or funding to help everyone in need. Prime Partner banks help mitigate the

decline in revenue available to fund legal aid. Keystone Bank is now one of nearly 60 banks that participate in the Prime Partner Bank program across the state. See a current list of Prime Partner banks in Texas at www.teajf.org/ financial_institutions/prime_ AUSTINLAWYER AL AL partners.aspx.

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Austin Bar’s Diversity Fellowship Program Enters Eleventh Year

hrough a partnership with the UT School of Law, the Austin Bar Association’s Diversity Fellowship Program encourages law students with diverse backgrounds to participate in law firm, governmental, and judicial fellowships for 10 weeks during the summer. From its very first year, the goal of the program was not to merely discuss cultural competency, but to actively demonstrate it in every respect. To that end, first-year law students are selected through a competitive application process and spend half of their fellowship with civil judges and half with participating law firms, whose generous financial contributions provide a stipend to the students. Each year, it seems the application process becomes more competitive and the list of participating law firms grows. The students’ success is evidenced by the program’s longevity. The program is currently preparing for its eleventh year. That is eleven

years of law students receiving invaluable experience while honoring their unique contributions to invest in their future legal careers. Many students who completed the fellowship have received subsequent employment offers—some with the very firms that hosted them through the program. The co-chairs of the Austin Bar’s Diversity Committee are Judge Lora Livingston, Judge Eric Shepperd, the Hon. Rudy Metayer, Tony Nelson, and Leslie Dippel. The committee thanks the following law firms for their participation, financial contributions, and overall support in 2019. The program could not be sustained with the support and encouragement of these local law firms: • Armbrust & Brown; • Burns Anderson Jury & Brenner; • Graves Dougherty Hearon & Moody; • Jackson Walker; • Locke Lord; and • McGinnis Lochridge.

Austin Bar’s Diversity Fellowship class of 2019 and committee co-chairs: (L-R) Judge Lora Livingston, Jatoriyae Dupree Jones, Tony Nelson, Diya Jajal, Ana Ibanez, Judge Eric Shepperd, Daniel Kim, Jordan Lee, and the Hon. Rudy Metayer. (Not pictured: Class member Reem Ali and committee co-chair Leslie Dippel.)

Firms interested in joining this year’s Diversity Fellowship Program or in making a contribution

should contact DeLaine Ward at AUSTIN LAWYER AL AL Delaine@austinbar.org.

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Write Better Faster Six Tips and Techniques BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

recurring question I get from lawyers, law students, and other readers is how to implement the best writing advice while writing under harsh deadlines and heavy workloads. “I want to write better,” these lawyers say, “and I know the things you recommend are good. But I just don’t have the time.” A variation of this question is this comment: “Even if I had the time, the client won’t want to pay my fee if I take the time necessary to implement all the writing techniques you recommend.” So the ultimate question is this: “How can I write better faster?” I raised this question on my blog, LEGIBLE, and I present here some advice I usually give combined with the best ideas from real lawyers who deal with real clients and real deadlines. Spend time on an outline. But outlining will slow things, down, right? No. A good outline, especially one that has complete sentences, will make the composing go faster, according to the author of “The Psychology of Writing,” Ronald Kellogg.1 The more detailed the outline, the faster the composing will go. The better the outline, the less time you’ll have to spend re-ordering. The earlier you start the outline, the more payoff you’ll get from outlining.2 Learn to compose rapidly. Get a draft down fast by shutting out your internal editor or “judge.” Save editing for later. Just write, and write fast. Compose in quiet or after work hours, away from distractions. And try training yourself to type faster—75 words per minute at least. If you’re unable to improve your typing speed (and I’ll confess it’s been tough for me), try voice-recog-

Create and follow a routine for completing all major writing projects, with deadlines for researching, outlining, composing, and editing-revising. nition software. I once brought a major project in on time by speaking it into voice-recognition software. Yes, I was working from a detailed outline. Raise your writing IQ. Attend legal-writing CLE courses, read books on legal writing, and study the best sources on English and legal word-usage. Your goal is to speed up both composing and editing. The more you know, the fewer writing slips you’ll make while composing. And although you’ll never consider a first draft a final product, your first drafts will get better and better. So then you’ll save time on editing, too. Thoroughly understand the material (or write what you know). Writing goes faster if you know the subject well. For example, when I write about legal writing, I zoom. When I write about a topic that’s new to me, I plod. It’s natural. So if you’re not consistently able to write about subjects you know well, you must master the material in order to write quickly.

for researching, outlining, composing, and editing-revising. For editing, create an evolving checklist of everything you know you’ll need to check. As you raise your writing IQ and as you work and re-work your routine, your editing checklist will grow—but also shrink. Stop making excuses. Don’t blame mediocre writing on short deadlines or heavy workloads. Find a way to make the time to edit and revise extensively;

revising is the only way to make mediocre writing good and good writing great. Work late, work weekends, or eat the hours if you think the client won’t pay. Even decline projects if you must. But do the work necessary to produce a well-polished product. If you do it right every time, you’ll get faster at doing it right. If you never or rarely do it right, you won’t get faster. I hope one or more of these techniques will work forLAWYER you, so AUSTIN you can write better faster. AL AL Footnotes 1. Ronald T. Kellogg, The Psychology of Writing 125-26, 130-31 (1994). 2. Wayne Schiess, Should You Outline?, Austin Lawyer 11 (Oct. 2015); Wayne Schiess, Outlining Effectively, Austin Lawyer 11 (Nov. 2015).

A collection of my Austin Lawyer columns is available in my book: Legal Writing Nerd: Be One.

Establish and stick to deadlines. Create and follow a routine for completing all major writing projects, with deadlines APRIL 2020 | AUSTINLAWYER

4th Friday Free Member-Only CLE Recap Asylum in the U.S.: Our History and How You Can Help BY KATE LINCOLN-GOLDFINCH AND LINDSAY GRAY

A groundswell of attorneys all across the country want to help with this humanitarian crisis, if only they could receive the proper training, mentoring, and guidance to represent these asylum seekers throughout their case. It was out of this need that VECINA, a new Austin-based nonprofit, was born in August 2019.

U.S. ASYLUM LAW HISTORY Protections for refugees fleeing persecution arose from the international failure to protect Jews fleeing the Holocaust. The 1951 UNHCR Refugee Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to his or her home country and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future on account of race, religion, nationality, political opinion, or membership in a particular social group. Congress codified these protections in the Refugee Act of 1980. Under previous policy, an asylum seeker could present themselves at the border and request asylum, upon which they would be detained or released into the

United States. After expressing a fear of return to their home country, the individual would be given a “credible fear interview,” which is a preliminary screening of the person’s asylum claim. If the asylum officer found the person to have a credible fear, the asylum seeker was given a Notice to Appear in Immigration Court, and remained in the United States throughout their case. THE IMPLEMENTATION OF THE MIGRANT PROTECTION PROTOCOLS (MPP) In one of several major blows to asylum protections, the Trump administration created and implemented the Migrant Protection Protocols (MPP), otherwise known as the “Remain in Mexico” program, in 2019. Under MPP, an individual is

given a Notice to Appear in Immigration Court immediately upon presentation at the border and expressing a fear of returning home. Instead of being detained at a facility or released into the U.S., the asylum seeker is returned to Mexico to await the completion of his or her case in court. This policy has created a humanitarian crisis. Asylum seekers stuck in Mexico often lack adequate access to safe shelter, food, work, and clothing. Several refugee camps have arisen at different ports of entry, where asylum seekers sleep in tents and depend on nonprofit organizations and volunteers for their daily needs. Cartels in Mexico frequently prey on asylum seekers. Another major consequence of MPP is lack of access to counsel. Because of logistical, financial, and geographic constraints, many asylum seekers have extreme difficulty in obtaining the assistance of a lawyer throughout the course

of their cases. Statistics show that 1-5 percent of asylum seekers subject to MPP have counsel through the trial phase of their case. And asylum seekers are five times less likely to win their cases without representation. Having a lawyer can literally mean the difference between life and death. ADDRESSING THE NEED Last summer, Austin-based immigration attorney Lindsay Gray traveled to Brownsville in preparation to cross into Mexico to assist asylum seekers. The asylum seekers were desperate to talk to an attorney. During her day in Matamoros, she met with 49 asylum seekers who had requested in writing to speak to her, but there were dozens of others who needed help as well. After returning from her trip, Gray had an idea about how to increase asylum seekers’ legal representation. Currently, asylum

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seekers waiting at the border depend upon immigration attorneys who live near the border to represent them. However, there are far too few attorneys to handle all the asylum cases. There is hope, though. A groundswell of attorneys all across the country want to help with this humanitarian crisis, if only they could receive the proper training, mentoring, and guidance to represent these asylum seekers throughout their cases. It was out of this need that VECINA, a new Austin-based nonprofit, was born in August 2019. VECINA provides pro bono attorneys who want to take on an asylum case with a nationally recognized expert mentor, so that they can get the guidance they need to competently and zealously represent their client in Immigration Court. VECINA works with on-the-ground organizations and pro bono lawyers to provide a much-needed service—filling the gap between asylum seekers wishing to have access to counsel and lawyers who are eager to help. Gray enlisted local immigration attorneys Kate Lincoln-Goldfinch and Karen Crawford to serve on her board of directors. The fledgling organization is making an impact in several projects along the southern border aimed at facilitating pro bono representation for migrants subject to MPP. In late 2019, the Austin Bar Association became aware of the MPP crisis and wanted to take action. On Friday, Feb. 28, 2020, lawyers from across Austin gathered at the Austin Bar for the 4th Friday Free Members-Only CLE, where speakers from VECINA and the MPP Laredo Project, led by Jones Day, discussed the history of asylum in our country and our new collaborative efforts. The Laredo project is a good choice for Austin lawyers because they have the support of the Jones Day project and can attend hearings in San Antonio. Lawyers attending the CLE obtained information about the logistics involved in volunteering, read about specific families in desperate need of counsel, and many signed up to take on clients for representation. If you missed the CLE, you can

still help! A video of the CLE is available at austinbar.org. If you are interested in volunteering, please sign up at vecina.org/ volunteer-opportunity/laredo. As a potential volunteer, you will receive a case docket with descriptions of actual cases for asylum seekers needing representation out of the San Antonio Immigration Court and the Laredo Tent Court. If you choose to take on a case, you will be sent a link to video trainings and be paired with a VECINA mentor for ongoing support throughout your case. Taking on an asylum case could mean saving a life. Join VECINA in the fight to preserve the rights

Kate Lincoln-Goldfinch is an immigration attorney at Lincoln-Goldfinch Law.

of asylum seekers. Your help is AUSTIN LAWYER needed now more thanAever. L AL

Lindsay Gray is the CEO of VECINA, a nonprofit organization focused on mentoring pro bono attorneys representing asylum seekers subject to the Migrant Protection Protocol, otherwise known as the “Remain in Mexico” program.

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Travis County Civil & Family Courts Facility Update

onstruction is underway for the new Travis County Civil & Family Courts Facility, located at 1700 Guadalupe Street. The building will consist of a 12-story, 448,461 gross square feet tower structure, underground staff and public parking, and an elevated, outdoor public plaza. The new courts facility, a LEED-certified building, will accommodate the office needs of 18 Travis County departments and will house 25 courtrooms, including 15 jury courtrooms, six non-jury courtrooms, one Child Protective Services courtroom, one special proceedings courtroom, and two State of Texas IV-D hearing rooms. Additional features of the facility include: • Dedicated attorney-client conference rooms throughout the building; • Separate, secure victim waiting areas; • Separate and secured entrance, holding, and circulation areas for detainees; • Dedicated, appropriate, and secure spaces for child testimony; • Short-term child drop-off center; • Large multi-function room that can be used for public events; • Four-and-a-half-level underground garage for staff and public parking; • Separate, secure judicial parking and circulation; • State-of-the-art law library and self-help center;

• Universal design providing full accessibility; • Generous and dignified public waiting areas; • Cafe with outdoor views; • Outdoor community plaza with capability to build a future second building above; • Thoughtful design to allow additional courtrooms to be added in the future; and • Street activation focused on walkability and public engagement, with 18-foot sidewalks, tree plantings, benches, and bike racks. In February, building users and stakeholders—including judges, courts staff, clerks, and Austin Bar representatives—toured a fullsize mock-up of a standard jury courtroom. The mock-up, pictured to the right, was constructed in an offsite warehouse and included all walls, doors, frames, hardware, finishes, furniture, materials, and systems, including lighting, non-functional A/V, and security systems. The intent of the mock-up was to demonstrate the scope, scale, and quality of finishes, materials, and equipment that are built into the design. Additionally, the mock-up provided an opportunity for feedback on functionality and usability of the space. The tour allowed stakeholders to test and demonstrate sightlines of all courtroom participants, visibility of video presentation materials,

TOP: View of judge’s bench, well, and jury box. BOTTOM: View from behind clerk’s desk, looking toward gallery and entry doors

and ease of use of elements that require movability, such as the court reporter station and counsel lectern. It also helped coordinate the design and construction details inherent in the functionality, ergonomics, and barrier-free accessibility of the various courtroom millwork items,

including the judge’s bench and all associated workspaces (e.g., clerk, court reporter), witness stand, jury box, counsel tables, and public seating. The new Civil & Family Courts Facility LAWYER is scheduled to open in AUSTIN early 2023. AL AL

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STRICTLY CONFIDENTIAL Anji Maddox

Offices in Austin, Round Rock and Dallas

THIRD COURT OF APPEALS CIVIL UPDATE

The following are summaries of selected civil opinions issued by the Third Court of Appeals during February 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of March 3, 2020.

> TCPA: Court dismisses appeal of order which only addressed attorney’s fees. Eureka Holdings Acquisitions, L.P. v. Marshall Apartments, LLC, No. 03-19-00806-CV (Tex. App.—Austin Feb. 6, 2020, no pet. h.). Eureka sued Marshall seeking specific performance of a real-estate contract. Marshall counterclaimed for breach of contract and tortious interference. The trial court granted in part and denied in part Eureka’s TCPA motion to dismiss Marshall’s counterclaims. Months later, the trial court signed a second order awarding Eureka attorney’s fees. Eureka appealed the second order. Marshall filed a motion to dismiss the appeal. The court of appeals noted that the TCPA allows a trial court to rule on the merits of a TCPA motion and later address attorney’s fees. The original order ruled on the merits of the TCPA motion and thus, was the only appealable order. The second order on attorney’s fees was an unappealable

interlocutory order. The court dismissed the appeal. CONDEMNATION: State’s two appraised values created a fact issue. Gunnarson v. State, No. 03-1800738-CV (Tex. App.—Austin Feb. 26, 2020, no pet. h.) (mem. op.). Gunnarson challenged a condemnation award for her 413acre tract of land on which she owned advertising billboards. The special commissioners awarded Gunnarson $745,000. The trial court struck Gunnarson’s expert, refused to let her testify about value, granted summary judgment for State, and awarded Gunnarson $245,010. The court of appeals affirmed the trial court’s evidentiary rulings, concluding that Gunnarson’s expert erroneously relied on advertising revenue and that Gunnarson’s opinion of value was too speculative. The court, however, concluded that State’s two competing appraised values created a fact issue that precluded summary judgment. The court reversed and remanded. TRIAL PROCEDURE: Statute of limitations not tolled for sporadic trips outside the state. Martin-de-Nicolas v. Octaviano, No. 03-19-00160-CV (Tex. App.— Austin Feb. 26, 2020, no pet. h.) (mem. op.). Juan Martin-de-Nicolas sued Mark Octaviano for negligence following a car accident.

PATIENT

Mark sought summary judgment on his affirmative defense of limitations. Juan argued that Mark’s absence from the state tolled limitations under CPRC § 16.063. The trial court granted Mark’s summary judgment. Mark argued that because he was a Texas resident subject to the personal jurisdiction of Texas courts, any out-of-state travel was not an “absence from the state” under § 16.063. The court of appeals noted that a defendant is present in Texas for purposes of § 16.063 if he is amendable to service under the general longarm statute with sufficient contacts to afford personal jurisdiction. Intermittent excursions outside Texas did not affect the exercise of personal jurisdiction over Mark. Thus, the statute of limitations was not tolled. The court affirmed. CONTRACTS: Lessee failed to exercise right of first refusal when it added conditions beyond purchase contract. NCWPCS MPL 23-Year Sites Tower Holding, LLC v. AISD, No. 0319-00424-CV (Tex. App.—Austin Feb. 28, 2020, no pet. h.) (mem. op.). NCWPCS leased a portion of land for a cell tower out of a larger tract owned by Akin. The lease contained a right of first refusal. AISD contracted with Akin to buy the entire tract “as is.” In exercising its right of first refusal,

PRACTICAL

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 an owner at Laurie Ratliff LLC.

NCWPCS sought a perpetual easement and a subdivision of the property. AISD and Akin closed on the property but excluded the cell-tower tract. After the deadline for NCWPCS to purchase the cell-tower tract, Akin informed NCWPCS that it was conveying title to the cell-tower tract to AISD. NCWPCS sued. The trial court granted summary judgment for AISD. The court of appeals noted that the lease gave NCWPCS a right to buy the cell-tower tract on the same terms as the AISD contract. NCWPCS’s additional terms, beyond the “as is” AISD purchase agreement, failed to comply with its right of first refusal. The court AUSTIN LAWYER AL AL affirmed.

PERSISTENT

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THIRD COURT OF APPEALS CRIMINAL UPDATE

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.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during October 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of March 3, 2020.

> CHARGE ISSUES – FELONY MURDER: Trial court did not err by denying request for instruction on manslaughter, by failing to include culpable mental states in the application paragraph of the charge, or by providing definitions of “intentionally” and “knowingly” in the abstract portion of the charge. Williamson v. State, No. 03-1700787-CR (Tex. App.—Austin Oct. 2, 2019, pet. ref’d) (mem. op., not designated for publication). Williamson was convicted of felony murder. On appeal, he asserted that he was entitled to a lesser-included-offense instruction on manslaughter. The appellate court disagreed. The court observed that felony murder “attaches no culpable mental state to the death of an individual.” In contrast, manslaughter requires a culpable mental state of recklessness. Because manslaughter requires proof of an element that felony murder does not, manslaughter is not a lesser-included offense of felony 20

AUSTINLAWYER | APRIL 2020

murder. Nevertheless, Williamson claimed that his indictment for felony murder required the State to prove a culpable mental state. However, Williamson based this argument on the language in the original indictment, which had been replaced. The language in the subsequent indictment tracked the language of the felony-murder statute and did not require proof of a culpable mental state. Williamson also contended that the application paragraph was erroneous because it “wholly omitted a mens rea, as alleged in the indictment.” Again, Williamson was focusing on the wrong indictment. The subsequent indictment did not allege a mens rea, and the jury charge correctly tracked that language. The court also rejected Williamson’s assertion that, because murder was a “result of conduct” offense, the abstract portion of the charge erroneously included definitions regarding the “nature of conduct” and “the circumstances surrounding conduct.” The court explained that, although intentional murder was a “result of conduct” offense, felony murder was not. The underlying felony in this case was unauthorized use of a motor vehicle, which included both “nature of conduct” and “circumstances surrounding conduct” elements. Thus, the definitions in the charge were correct. PROSECUTOR BECOMING “A WITNESS IN THE CASE”: Trial court did not abuse its discretion in denying motion for mistrial when prosecutor elicited testimony from officer regarding that prosecutor’s decisions. Corporon v. State, 586 S.W.3d 550 (Tex. App.—Austin 2019, no pet.). Corporon was investigated for separate offenses committed in Colorado and Texas. The lead prosecutor decided to close the case that originated in Colorado. Corporon cross-examined the investigating officer regarding that decision, and the officer mentioned the name of the prosecutor. On redirect exam-

ination, that prosecutor asked the officer leading questions regarding that prosecutor’s decision to close the case. Corporon objected to the prosecutor becoming “a witness in the case,” but the prosecutor claimed that she was only trying to “clear up any misconception” regarding her decision. Corporon moved for a mistrial, which the district court denied. The appellate court affirmed. The court acknowledged the general rule that “[t]he prosecutor who tries a case should not testify as a witness in regard to a contested matter absent a showing that [her] testimony is necessary,” and “[s]uch necessity generally involves a showing that the testimony is important to the State’s case or required to rebut the defendant’s case and that the need for the testimony could not reasonably have been anticipated.” The court also observed that in this case, the prosecutor did not testify. Instead, she essentially had another witness testify for her. Corporon

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asserted that this was “the functional equivalent” of the prosecutor testifying and violated Disciplinary Rule of Professional Conduct 3.08, which prohibits an attorney from serving a dual role as both witness and advocate during trial. However, the court did not need to determine if the rule had been violated. The court’s role was “to determine the effect of the alleged rule violation on the fairness of the trial proceedings.” Corporon was required to demonstrate that “the alleged disciplinary rule violation affected his substantial rights or deprived him of a fair trial.” The court explained that Corporon failed to carry that burden in this case. First, the decision to close the Colorado case was not “a controversial or contested matter” during trial. Second, the strength of the State’s evidence against Corporon was strong. The court was unable to conclude that the district court had abused itsAUSTIN discretion in denyLAWYER ing the motion for mistrial. AL AL

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FEDERAL CIVIL COURT UPDATE The following are summaries of selected criminal opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of March 6, 2020.

> REHABILITATION ACT AND PATIENT PROTECTION AFFORDABLE CARE ACT: Damages for emotional distress are not available under the Rehabilitation Act (“RA”) and Patient Protection Affordable Care Act (“ACA”). Jane Cummings sued federal funding recipient Premier Rehab Keller, P.L.L.C. (“Premier”) for disability discrimination. Cummings is legally blind and deaf. She communicates primarily through American Sign Language (“ASL”). She contacted Premier to treat her chronic back pain, but Premier refused to provide her with an ASL interpreter to allow her to communicate with a therapist. Denied an interpreter, she went to another physical-therapist provider. Because Premier obtains federal funding, Cummings sued Premier for, among other things, emotional-distress damages under the ACA and RA for discriminating against her due to her disability by not providing her with an ASL interpreter. The district court dismissed her ACA and RA claims for failure to state a claim, holding that emotional-distress damages are not recoverable under the ACA or RA. In a matter of first impression for the Fifth Circuit, the court affirmed the district court. The ACA and RA are Spending Clause legislation, which the Supreme Court has repeatedly likened to contract law. And in cases in “which funding recipients may be held liable for money damages,” the Court has “regularly applied the contract-law analogy,” including, like here, in “private suits under Spending Clause legislation.” Barnes v. Gorman, 536 U.S. 181, 186 (2002). But

the Court has also made clear that not “all contract-law rules apply to Spending Clause legislation.” Id. at 186−87. The issue is whether the recipient is “on notice” that it may be liable for the type of damages sought by the plaintiff. Because emotional-distress damages are typically not available in breach-ofcontract actions, Premier could not have been on notice that it could be liable for emotional-distress damages if it violated the RA or ACA. This is so even though emotionaldistress damages may be recoverable in breach-of-contract actions in rare circumstances. Therefore, the court held that emotional-distress damages are not available under the ACA or RA. PERSONAL JURISDICTION: Targeted local advertising in a forum state is no longer sufficient contacts to satisfy general jurisdiction under the Supreme Court’s “at home” test. An elderly woman from Texas fell and died while visiting a Louisiana casino. Her estate and family members sued the Louisiana casino in Houston, Texas, alleging that the casino was subject to general personal jurisdiction in Texas. While the casino had no physical presence in Texas, was a foreign company to Texas, and was not registered to do business in Texas, many of the casino’s customers were from Texas. For that reason, the casino marketed heavily in Texas and provided a shuttle service to take customers to and from Texas. Relying on several opinions issued prior to the Supreme Court’s opinion in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011), Plaintiffs argued that the casino’s local advertising in Texas was enough to establish general jurisdiction. The court disagreed, and held that under the Supreme Court’s redefined standard for general jurisdiction—the “at home” test announced in Goodyear, 564 U.S. at 919, and again in Daimler AG v. Bauman, 571 U.S. 117, 122 (2014)—the casino

David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico.

Sameer Hashmi is an associate at Scott Douglass McConnico who practices complex commercial litigation across Texas and around the country.

Targeted advertising without was not subject to general jurisa physical presence in the forum diction in Texas. “Generally, a state is not enough to create an corporation’s “home” falls in two exceptional case to justify an paradigmatic places: (1) the state exercise of general jurisdiction. of incorporation; and (2) the state To satisfy Daimler, the defenwhere it has its principal place of dant must also have a physical business. These two places “have presence in the forum state. the virtue of being unique—that While the casino did a substanis, each ordinarily indicates tial amount of business with only one place—as well as easily Texans, it did not do business in ascertainable.” Daimler, 571 U.S. Texas. Opinions issued before at 137. Otherwise, it will be an Goodyear and Daimler holding exceptional case in which a forthat targeted advertising without eign corporation is considered at a physical presence can satisfy home in the forum state. Perkins general jurisdiction are no longer v. Benguet Consolidated Mining AUSTIN LAWYER goodAlaw. L AL Company, 342 U.S. 437 (1952).

INTERESTED IN WRITING FOR AUSTIN LAWYER? Contributing authors sought for inclusion in Austin Lawyer. Articles on various legal-related topics are considered for publication monthly. Please limit submissions to between 500 and 750 words. Send articles to Nancy Gray, Managing Editor, at nancy@austinbar.org. Submission is not a guarantee of publication.

AUSTINLAWYER APRIL 2020 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

When Is a Search Not a Search? When It’s Really Quick. BY DAN DWORIN

D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.

he U.S. Supreme Court gets the last word on cases interpreting the Fourth Amendment’s prohibition against unlawful searches and seizures. Recently, however, the Texas Court of Criminal Appeals (CCA) seemed to sharply limit the reach of one of the Court’s holdings in the rapidly-evolving area of cellphone location information. In Carpenter v. United States, the Supreme Court held that gathering historical cell-site location information (CSLI) showing the movements of a suspect’s phone over a seven-day

period without a warrant violated the Fourth Amendment.1 CSLI is data kept by cell-phone carriers and can reveal the location of a given phone relative to nearby cell-phone transmission towers. The Court determined that a warrant is required to access such data, reasoning that because cell phones are now “almost a feature of human anatomy… compulsively carried… all the time.” Consequently, a cell-phone user may or may not even be aware that her location is constantly being sent to the carrier when in use, and searches that can reveal this data implicate the Fourth Amendment even when the user is carrying the phone in a public place.2 The Court also rejected application of the “third-party doctrine,” which has been used to circumvent the warrant requirement for records kept by third-parties such as banks, accountants, etc., where the individual voluntarily disclosed the information in the normal course of business.3 Last year, the CCA faced a similar fact pattern (law enforcement had obtained CSLI using an administrative procedure, but not a warrant, to determine the location of a suspect’s phone during a three-hour period of time). The CCA noted the warrant requirement in Carpenter, but seemed to carve out an exception since

the police monitoring of the suspect’s phone was done over a much shorter period of time.4 The Carpenter opinion certainly mentioned the broad scope of the data obtained without a warrant, but nowhere in the majority opinion did the Court say that CSLI could be obtained without a warrant so long as there wasn’t too much of it. And although the Carpenter Court noted that there could always be an exception for exigent circumstances that prevented getting a warrant, it’s worth noting that this argument was not made in either case. In fact, one of the detectives in Sims had returned to his office during normal business hours where a judge would be easily available to prepare a warrant, when he discovered that one of his colleagues had already availed himself of the administrative option of “pinging” the defendant’s phone through the carrier to determine its location.5 Recently, however, the CCA seemingly reversed course in another recent opinion, holding that warrantless acquisition of 23 days’ worth of CSLI did constitute an illegal search.6 Curiously, the Holder opinion barely mentions Sims.7 Reconciling the holdings in

Sims with Carpenter is difficult, and it is harder still to find a distinction between the facts of Holder and Sims, other than the length of time involved. Given the confusion and the possibility that the CCA might eventually be instructed to revise its holding in Sims, law enforcement would be well-advised to get a warrant for AUSTIN LAWYER AL AL even a small amount of CSLI. Footnotes 1. 2. 3. 4.

138 S.Ct. 2206 (2018). Id. at 2218. Id. Sims v. State, 569 S.W.3d 634 (Tex. Crim. App. 2019). 5. Id. at 638. 6. Holder v. State, __ S.W.3d ___, No. PD-1269-16 (Tex. Crim. App. Mar. 11, 2020). 7. Id.

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APRIL 2020 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

Candidates Announced for AYLA Board of Directors Elections to be Held April 13 to May 1, 2020

he Austin Young Lawyers Association announces the candidates for its 2020-21 board of directors. A link to the electronic ballot will be sent in an email from BallotBox Online on April 13, 2020. The election will close on Friday, May 1, 2020. Please add noreply@ballotboxonline.com to your account so the message gets past your spam filter. The following candidates are running for the AYLA officers and board of directors. The new board will take office on July 1, 2020, along with David King, who will serve as AYLA’s president. King has been an AYLA director since 2015. He is currently president-elect of AYLA and previously served as secretary and treasurer. He is also co-chair of AYLA’s Bench Bar Conference and Holiday Programs committees. Outside of AYLA, he is a shareholder at Graves, Dougherty, Hearon & Moody, and he serves on the board of directors of Mainspring Schools.

OFFICERS The only contested officer race is for the office of secretary. Candidates for secretary are Sarah Harp and Eric Nelson. Harp is an assistant team leader in the Criminal Appeals Division of the Attorney General’s Office. She graduated from the University of Oklahoma and the University of Tulsa School of Law. Since moving to Austin from Oklahoma in 2014, Harp has been a dedicated and involved member of AYLA. Nelson is an associate attorney at Warren & Lewis and primarily practices in the areas of wills, trusts, and estates. Eric has been a member of AYLA since 2015 and has served as a director on the AYLA board for the past two years. 24

AUSTINLAWYER | APRIL 2020

Rachael Jones is running unopposed for AYLA president-elect. Jones has been actively involved in AYLA and the Austin Bar since becoming licensed as an attorney. She has been on AYLA’s board of directors since 2016, serving as secretary in 2018-19 and treasurer in 2019-20. She is currently a co-chair of AYLA’s Bench Bar, Holiday Programs, and CLE committees, is on the Austin Bar Communications committee, serves as the Austin Lawyer copy editor, and is a 2016 Austin Bar/AYLA Leadership Academy graduate. Blair Leake is running unopposed for AYLA treasurer. Currently serving as AYLA secretary, and formerly as an elected AYLA director, Leake has worked to rebuild the Community Service Days committee, which now hosts monthly volunteer events with local charities. He has served as the chair of that committee for the last three years, and has also served on the Runway for Justice committee, the Women’s Resource Fair committee, and MLK Day of Service committee.

DIRECTORS Seven candidates are vying for four two-year terms on the AYLA board of directors. The four elected board members will join directors Ben Dower, Cathy Garza, Jenna Reblin Malsbary, and Emily Morris, whose terms expire in 2021. Brian Aslin is an Assistant Attorney General in the Office of the Attorney General’s Transportation Division. He previously served as an Assistant District Attorney in Waco, where he also earned his JD and BFA from Baylor University. Brian is currently a member of the 2020 Austin Bar/AYLA Leadership Academy. Eric Cuellar is proud to be an AYLA member because it is a

Aslin

Cuellar

Haley

Harp

Jones

King

Leake

MacCarty

Nelson

Parks

Shell

Suggs

welcoming, organized, and professional association. He wants to help AYLA continue to grow and provide great resources to its members. As a director, he will work hard to continue to make AYLA a great home for young lawyers. Callie Haley is an attorney at Wright & Greenhill. She feels fortunate to have started her legal career in Austin. The collegial community within the Austin Bar has invaluably shaped how she practices law and inspired her to run for a position in AYLA. Jessica MacCarty is the founder of The MacCarty Law Firm, which handles workers’ compensation, personal injury, and appellate cases. She graduated from The University of Texas in Austin and Baylor Law School. Jessica has been an active member of AYLA since 2012. Ciara Parks is an Assistant District Attorney with the Travis County District Attorney’s Office. She was a member of the Austin Bar/AYLA Leadership Academy Class of 2019 and now serves on

the Leadership Academy’s planning committee. Parks currently serves as the Corresponding Secretary for the Austin Black Lawyer’s Association. Morgan Shell practices personal injury, construction, and employment law at Wright & Greenhill. She is a member of the 2019 Austin Bar/AYLA Leadership Academy and has volunteered at the MLK Day of Service. She would be eager to serve the Austin community and legal profession as a director for AYLA. Hailey Suggs is a civil litigation associate at Graves, Dougherty, Hearon & Moody. Prior to joining GDHM, Hailey received her J.D. from the University of Michigan Law School, where she was an Articles Editor for the Michigan Law LAWYER Review. Hailey is AUSTIN a native Austinite. AL AL

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Hosts 5th Annual Diversity Bar Mixer

n Thursday, Feb. 13, 2020, around 150 attorneys from various local diversity bar associations converged at Sellers Underground for the 5th Annual Diversity Bar Mixer. Attorneys from the Austin Young Lawyers Association, the Austin Bar Association and its LGBT Law Section, the Austin Asian American Bar Association, the Austin Black Lawyers Association, the Hispanic Bar Association of Austin, the South Asian Bar Association of Austin, and Travis County Women Lawyers’ Association enjoyed cocktails, fellowship, and appetizers provided by Central Market Catering. The event was planned to coincide with the American Bar Association’s midyear meeting, and lawyers from across the country were invited to attend. The ABA attendees generated much conversation as Austin’s diverse group of attorneys welcomed them to their city and shared commonalities as professionals and as people. Thank you to all of our generous sponsors for making this event a success, and to Katie Fillmore, who organized and LAWYER spearheaded AUSTIN the evening’s activities. AL AL

TOP: (L-R) AYLA board member Ben Dower, AYLA President Sandy Bayne, and AYLA board member Lena Proft. BOTTOM: (L-R) AYLA member Jessica Mangrum; TYLA representative to the AYLA board, Katie Fillmore; and AYLA member Kennon Wooten.

UPCOMING EVENTS All upcoming events have been postponed due to the coronavirus outbreak. Please check the website at AYLA.org for updates as they become available.

APRIL 2020 | AUSTINLAWYER

PRACTICE POINTERS

Edit in Hardcopy BY APRIL LUCAS

April Lucas is a litigation partner at McGinnis Lochridge, where she also serves as the General Counsel to the firm. April is a former appellate briefing attorney for Justice Puryear at the Third Court of Appeals.

ave you noticed? The moment you hit “print” on a professional document, all the typos and mistakes suddenly appear—especially if you’re working under a tight deadline. For some reason, errors that were invisible on a screen now jump out at you on the paper. This frustrating phenomenon is one reason so many lawyers recommend reading and editing in hardcopy instead of on a screen. They say it will decrease distractions—and that’s a good idea, especially if you also take the printed document out of the office you’ve been working in, away from your computer, colleagues, landline, and cellphone to read. Eliminating the constant interruptions means less switching between tasks, less lost time, and fewer mistakes. There are other reasons to read in hardcopy as well. Multiple studies suggest that reading on paper is more effective than reading on a screen, whether a computer monitor, iPad, e-reader, or phone. The results are particularly better 26

AUSTINLAWYER | APRIL 2020

in the areas of comprehension, memory, and sequencing, and reconstructing the details and structure of a passage. Why does our ability to identify and remember the details of writing improve if we read on paper? Why is what we read on screens so “slippery,” as one blogger1 described it? The answer may be in physiological processes. What our eyes do and what our brains do is different when we use paper instead of screens. THE EYES Screens increase skimming behaviors. Researchers (including Ziming Lin of San Jose University and Jakob Nielsen of Nielsen Norman Group) have analyzed eye tracking tests to identify a number of patterns skimming takes. Researchers identified a common “F- or E-shaped” reading pattern, among others. That is, instead of reading each line from left to right, screen readers tend to look at beginning sentences, skip down and read another line or two, then scan vertically on the left-hand side of text. We do this on both desktop and mobile devices. Patterned scanning is not limited to search results or online articles; it occurs in reading books, papers, and other materials on screen but offline. Skimming isn’t always bad; it involves scanning and picking out key words, quickly feeling out the gist of a paragraph, and seeking relevant data. It’s an efficient way to sift through voluminous information for what we need, and to select and focus on what is important. This is useful for browsing the internet or looking for particular information. It’s not so great for generating effective legal work product. Companies who communicate via the internet fight the eye’s

tendency to skip onscreen text. Designers use placement and formatting strategies to draw the eye to frequently-neglected areas, and they pack more information into the areas that are more routinely viewed.2 Lawyers don’t usually have that ability. The style and formatting of our work can’t be crowded to the edge of a screen or filled with colors and styles. For us, reading on paper is a practical strategy to help an editor actually see all the content. THE BRAIN Studies suggest that the brain may process reading on paper as a tactile and spatial experience. The brain can more easily notice and recall writing in relation to where it appears on a paper page—which affects our ability to identify and remember detail, particularly details about the order of events in a plot (or, in our work, an argument or analysis). Paper encourages rereading and thinking, and improves recall and sequencing. Laboratory experiments and consumer reports show that the “navigational difficulties” of reading on a screen may impair comprehension, and increase browsing and other shortcuts.3 One subject observed, “It’s like your eyes are passing over

the words but you’re not taking in what they say.”4 This can be painfully true when what we’re reading is our own writing. Our conscious brains tend to think we are seeing what we meant to write, and may miss what we actually wrote. So, take the time to print out and read your work in hardcopy; doing so may allow you to see AUSTIN LAWYER L AL what you trulyAsaid. Footnotes 1. https://www.wired.com/2014/05/ reading-on-screen-versus-paper/. 2. See, e.g., Kara Pernice, F-Shaped Pattern of Reading on the Web: Misunderstood, But Still Relevant (Even on Mobile), Nielsen Norman Group, Nov. 12, 2017, https://www.nngroup. com/articles/f-shaped-patternreading-web-content/. 3. Ferris Jabr, The Reading Brain in the Digital Age: The Science of Paper Versus Screens, Scientific American, April 11, 2013, https://www. scientificamerican.com/article/ reading-paper-screens/. 4. Michael S. Rosenwald, Serious Reading Takes a Hit from Online Scanning and Skimming, Researchers Say, The Washington Post, April 6, 2014, https://www.washingtonpost. com/local/serious-reading-takesa-hit-from-online-scanningand-skimming-researcherssay/2014/04/06/088028d2-b5d211e3-b899-20667de76985_story. html.

Seeking Nominations for Regina Rogoff, Professionalism Awards

he Austin Bar Association is currently seeking nominations for two awards, the Regina Rogoff Award and the Professionalism Award. T he Regina Rogoff Award honors an attorney who has demonstrated outstanding service in the public/non-profit sector. This annual award serves as a lasting tribute to the career achievements

of Regina Rogoff, Executive Director of Legal Aid of Central Texas. Rogoff was with legal services in Texas since she started at LACT as a Vista Volunteer in 1973. Presented jointly by the Austin Bar Association and the Texas Center for Legal Ethics and Professionalism, the Professionalism Award honors a lawyer who best exemplifies, by conduct and character, truly professional traits that

others in the bar seek to emulate, and whom all in the bar admire. Those selected for the award will truly be “role models” for the bar, particularly for younger or less experienced lawyers. Send nominations for both awards to DeLaine Ward, at delaine@austinbar.org, by April 24, 2020. The awards will be presented at the Austin LAWYER Bar board AUSTIN AL AL reception on May 27, 2020.

APR 24 NOMINATIONS DUE: REGINA ROGOFF AND PROFESSIONALISM AWARDS EMAIL: delaine@austinbar.org

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Austin Lawyer, April 2020

Articles inside

Austin Bar Board and Officer Candidates Announced

How to Not Get Away with Suicide

Candidates Announced for AYLA Board of Directors

4th Friday Free Member-Only CLE Recap

President’s Column