Austin Lawyer, April 2022 by Austin Bar Association

austinbar.org APRIL 2022 | VOLUME 31, NUMBER 3

Representing Transgender Clients Pointers for Working with Transgender and Nonbinary Clients in the Criminal Justice System BY ELIZABETH DUGGAN AND RICK COFER

ransgender clients come from all walks of life.1 And attorneys have a duty to focus on the needs of clients. But what does client-centered mean in practice when an attorney may not have much experience— in practice or in life—with transitioning or transgender and nonbinary people? Gender identity is different and distinct from biological sex. Gender identity exists on a spectrum and is not limited to being a man or a woman. The transgender community includes a broad range of people whose gender identity is not aligned with their birth-assigned sex.2 Recent personal experience representing a 17-year-old transitioning individual was a learning opportunity for us. Representing him was a lesson in the value of humility and importance of listening to a client. Our client was charged with an offense that he felt was driven by discrimination against his transgender identity. From the beginning of our engagement, we were direct and up front with our client about our goals in working with him

and what we didn’t know. We asked our client to educate us about his identity. Simply asking his pronoun preference paved the way for his willingness to share his story. With our client’s consent, we contacted the court to inform them of our client’s preferred name. Although court staff didn’t promise to honor the client’s preferences, they appreciated the heads-up. The next thing we knew, the prosecutor was reaching out using the client’s preferred name. While this may seem like a small step taking little time, the benefits for our client were significant: He felt he’d won a small piece of his personal dignity back. At one point, our client’s mother shared with us an insight that was an important reminder of what it means to empathize with any client who has faced discrimination we, as the attorneys, might not have personally experienced. Our client’s mother asked us to imagine what it feels like to have our feelings hurt, and then imagine experiencing that feeling every second of our life. That is what her child—our

We asked our client to educate us about his identity. Simply asking his pronoun preference paved the way for his willingness to share his story. client—feels. We have developed the following practice pointers for attorneys working with transitioning, transgender, and nonbinary clients: Know when to acknowledge what you do not know. For some attorneys, the transgender and nonbinary world is an unfamiliar place. This can lead to new conversations, expectations, and realities that initially may feel uncomfortable. Having the humility to admit you do

not know all the answers—and asking questions to learn more about your client—will make you a better attorney in general! Do not assume. If you do not know someone’s gender identity or preferred pronouns, then just simply ask and listen. Listen to learn and not to respond. Listen to how the client refers to themselves. Do not share a transgender or nonbinary individual’s transition continued on page 22

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CONTENTS

AUSTINLAWYER APRIL 2022 | VOLUME 31, NUMBER 3 AL A L INSIDE FEATURED ARTICLES

IN EVERY ISSUE

CONNECTIONS

16 Briefs

ONLINE austinbar.org

Representing Transgender Clients

10 The Safe Outdoor Dog Act 12 Estate Planning Is for All of Us 14 The State Bar of Texas Wants Your Input 24 VLS Returns to In-Person Legal Advice Clinics

17 Third Court of Appeals

EMAIL sonta@austinbar.org

Civil Update

18 Third Court of Appeals

MAIL Sonta Henderson, Managing Editor Austin Bar Association 712 W. 16th Street Austin, TX 78701

Criminal Update

19 Federal Civil Court Update 20 Criminal Court News 28 AYLA

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DEPARTMENTS 6

President's Column

Member Spotlight

Visit the new Austin Bar Association website at austinbar.org and read Austin Lawyer online at issuu.com/austinbar.

27 Opening Statement 30 Practice Pointers

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NEWS & ANNOUNCEMENTS

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PRESIDENT'S COLUMN DAVID COURREGES, UNIVERSITY FEDERAL CREDIT UNION

I’m Learning to Fly… Again

ell, here I am… on a plane. Today we’re flying from Austin to Washington D.C. for a quick work trip. I’m pleased to report that everything is going well. I arrived at the terminal at the suggested two hours prior to takeoff and made it to the gate with just over an hour and fifty minutes to spare. As you can probably tell, the security screening was uneventful, almost. The TSA agent was adamant that I am a politician, despite my repeated reassurances otherwise. That said, I must report to all of you in the legal community that suits are apparently no longer commonplace at the airport. Combine that with boots, tie, and cufflinks? Politician. What else? While attempting to wait out my boredom, I was

AUSTINLAWYER | APRIL 2022

able to visit the Salt Lick where I stoically opted for the smoked turkey breast over the brisket. #hero #hearthealth. I even got to see a few friends who also arrived a figurative decade too early for their departure times, and one was even on my flight! We weren’t delayed; takeoff was good, and we’re now soaring over Memphis at an altitude of 37,000 feet. Nonetheless, I’m nervous. Why? I am, after all, free to move about the cabin! Maybe I’m apprehensive because it has been more than two years since I’ve been on a plane? Maybe it’s the escalating political tensions? Maybe it’s because after hundreds of flights I finally realize that I am currently exceeding my personal record vertical leap by 26,997.5 feet? Whatever it may be, I am comfortable declaring that I feel like I’m nine again, flying with my grandparents on a pre-smoke-free flight originating from Austin’s quaint Mueller Municipal Airport. In the present endemic society, yesterday’s mundane has escalated to new/old phenomenon that I’m feeling again for the first time. Today I’m flying. Not so long ago, it was the “new” experience of working in person… in

my office… at my desk… attending real meetings… with virtual people. Even more recently it was speaking at a real, live in-person Austin Bar Association event—the opening retreat for the Austin Bar/Austin Young Lawyers Association Leadership Academy. Talk about nervous! Though I’m historically an introvert—an INTJ to be exact, I have shifted to the ranks of ENFJ in more recent years—visiting with this year’s leadership class was emotional for a few reasons. Not only was it the first occasion I had in over two years to visit with a large group of people face-toface, but this is also the TENTH anniversary of the Leadership Academy—a “Bar project” that I helped develop with a friend more than a decade ago during lunch at Hula Hut. The idea was simple: bring current and future leaders of the Austin Bar together to learn from established leaders of the Austin legal and government communities with the intent to foster long and meaningful relationships that would benefit not only the individual class members but also the Austin Bar and Austin as a whole. Our initiative worked! Leadership Academy members

have come together repeatedly to support one another and the community with amazing results. Look no further than the inaugural class, for an example, which raised nearly $30,000 for Texas Rio Grande Legal Aid and inspired TRLA to establish “The Leadership Impact Fund.” They even organized a “Pro Bono Prom” at Austin City Hall, where Mindy Montford and Collin Newberry were named Prom Queen and King, respectively. Not only did they pull off a great class project, the Class of 2012 has also gone on to be strong community leaders, with several future presidents of AYLA (Justice Chari Kelly and Jorge Padilla) and judges (Justice Kelly and Judge Jessica Mangrum), a president of the Texas Young Lawyers Association (Sally Pretorius), as well as many Austin Bar and AYLA Board members, committee chairs and community leaders. The best part is that each subsequent class has gone on to distinguish itself. Be it the promotion of pro bono opportunities, youth literacy, or other public service opportunities— each class has “done good.” They have also yielded several judges, at least one Pflugerville

Pflugerville Councilman Rudy Metayer, Texas Third Court of Appeals Justice Chari Kelly, and Austin Bar Association President David Courreges supporting the Austin Bar’s Leadership Academy.

City Councilperson, a second TYLA president (who I hear has plans to move back to Austin very soon!), and many leaders within the Austin Bar, AYLA, and other bars and associations throughout the state. Being present at this year’s

opening retreat was a celebration. I had the honor of speaking after Judge Karin Crump, co-founder of the Leadership Academy. Judge Crump artfully delivered and pontificated on Senator Kirk Watson’s “Ground Rules,” which hold a special meaning for

many of us (“Never forget that hope matters.”). In addition, we heard from AYLA President-Elect Blair Leake, immigration lawyer Kate Lincoln Goldfinch, the aforementioned Pflugerville City Councilperson Rudy Metayer, and Justice Chari Kelly. We also got to hear from this year’s chair Elliott Beck and vice-chair Sam Denton, who are doing a phenomenal job carrying on my most-favorite of Austin Bar traditions. What is my favorite part about the Leadership Academy experience? I’m glad you asked. I don’t have just one. I have enjoyed watching each class grow individually and as a cohesive team. On the level of personal satisfaction, I enjoyed creating with a friend and mentor something from scratch that continues to benefit others in ways I could not imagine in 2011. Looking back, however, I am most honored by the trust that then-Austin Bar President David Chamberlain

L A W

LLP

and Executive Director DeLaine Ward placed in us by allowing us to move forward with this project. If not for them, there would be no Leadership Academy today. Thank you, both! The flight attendant has announced that it is “time to make sure that [our] seat backs and tray tables are in their upright and locked positions, and that [our] seat belts are correctly fastened.” Before I go, however, I want to take this opportunity to encourage you to think big. If you have a project idea, or just want to get involved, the Austin Bar is here for you, just like it has been here for me. Okay, I have been warned and called “sir” on two separate occasions. Please pardon me while I silently pray for a safe and uneventful landing and embark on my next new-to-me adventure: deciding between an Uber or a AUSTIN LAWYER L AL cab. Wish me A luck!

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MEMBER SPOTLIGHT

Living My Dream Meet Austin Bar Member Sandra Ritz BY SANDRA RITZ

“

Founding and running the Law Office of Sandra Ritz was and is my absolute dream job! The daily challenges and the victories are exactly what I had hoped to be doing, especially while helping my clients overcome hardships.

”

LEFT: Sandra Ritz (center) with her daughter, Savannah (left), and her son, Jackson (right).

AUSTIN BAR: What was your idea of a “dream job” growing up—the profession you pictured for yourself?

Meet Sandra Ritz. She is a criminal defense attorney who is active in the community. Ritz is a member of the Travis County Women’s Lawyers Association, Austin Criminal Defense Lawyer’s Association and more. She also spends time volunteering for Girl Scouts of America.

was raised in about 25 different cities in Texas. My father was a Baptist minister, and he was assigned to lead different churches all over the state. My mom was a teacher. Upon graduating from high school, I ended up at Texas A&I University in Kingsville (now TAMUK) in 1988. I graduated college in 1991 and headed straight to the University of Texas School of Law, where I graduated in December 1993. During law school I interned at the Travis County Juvenile Public Defender’s Office and the Federal Public Defender’s Office. Subsequently, I also worked for the Juvenile Public Defender’s Office. After I graduated and passed the bar, I started my first job as an associate attorney 8

AUSTINLAWYER | APRIL 2022

at the law firm of Joseph A. Turner. I worked for the Turner law firm for seven years, and I then opened my own practice in 2002 (when I was eight-anda-half-months pregnant with my second child). I have owned and operated my own law firm, the Law Office of Sandra C. Ritz, for the past 20 years. I have two children. My oldest child, daughter Savannah, is 23 years old and is an aspiring actor and playwright who lives in New York City. And the child who I was pregnant with when I opened my law firm? Well, he is now 20 years old! My son Jackson is currently a sophomore at Southern Methodist University in Dallas, studying mechanical engineering and playing football for the SMU Mustangs!

Owning my own law firm was and is my absolute dream job! Having my own law firm is what I hoped for growing up, what I love doing, and what I think I do best. The daily challenges and the victories are exactly what I had hoped to be doing, especially while helping my clients overcome hardships. As a criminal defense attorney, I am an advocate for my clients and a counselor to those who need my guidance through the legal system. I handle all misdemeanors and felonies in state court, and I am licensed in Federal Court in the Western District of Texas. AUSTIN BAR: Tell us about a hobby or something people may be surprised to know about you. When I am not working in my office or in court, you can find me in Dallas at an SMU football game watching my son playing football for the Mustangs! I can also be found in New York City with my daughter enjoying the theater and Central Park. And finally I can also be found in Breckenridge enjoying the

beautiful snow-topped mountains and some good exercise skiing with friends! AUSTIN BAR: Have you ever defended any famous clients? Well, I did help get Matthew McConaughey out of jail after the “bongos” incident. He hired Joe Turner’s office, and I was Turner’s associate at the time. That was fun! It was before he won his Oscar for Best Actor. AUSTIN BAR: Which television judge would you rather go before to defend a case and why: Judge Judy, Judge Steve Harvey, Judge Hatchett? Judge Steve Harvey, because he uses common sense to resolve conflict. AUSTIN BAR: Any last parting thoughts? I have so enjoyed running my own law practice. I was able to gain experience from internships in law school and from my first job, then parlaying that experience into running my own firm. I am grateful to have gained expertise and experience in criminal law and to have had the opportunityAUSTIN to use that experiLAWYER AL AL ence to help my clients.

The Safe Outdoor Dogs Act BY KELLEY DWYER

Kelley Dwyer is an Austin Bar board member. Dwyer is a solo attorney focused on business transactional law. She is a founding chair and the current chair of the Austin Bar’s Animal Law Section. She spends time fostering, caring for, and volunteering with shelter animals with special medical or behavioral needs.

any of us share our lives with dogs who live out their days in comfort in our homes as beloved family members, but many other Texas dogs are not so lucky. Sadly, however, a significant number of dogs in Texas live primarily, or only, outside. This is not an illegal activity in Texas. The Safe Outdoor Dogs Act does not prohibit the tethering of dogs, and it does not prohibit walking your dog on a leash or temporarily, safely, and humanely restraining your dog while handling another task. Its purpose is to reduce the inhumane conditions of many tethered dogs across the state. Tethering, in this context, means the act of using something to tie a dog to a fixed object for an extended period of time on your property. Is tethering a dog inhumanely a widespread problem in Texas? In short, yes. Unfortunately, in Texas, too many dogs spend their entire lives outside at the end of a huge heavy rope or chain. Chained dogs are vulnerable to parasitic illnesses, 10

AUSTINLAWYER | APRIL 2022

stress from the elements, injuries from constant straining to escape their confinement, and injuries from chains and collars becoming embedded in their skin. Chained dogs can also get tangled in their chains resulting in injury or loss of access to food, water, and shelter. Continuous chaining leads to aggressive behavior in dogs, which can lead to serious injuries to humans, especially children. Of note, in the City of Austin, leaving a dog unattended on a chain or a tether is prohibited by city law (Austin City Code Section 3-4-2). As a personal aside, I know many dog owners who routinely leave their dogs unattended, but not tethered, in their fenced-in yards believing that they are perfectly safe. While not prohibited in Austin, the practice of leaving a dog unattended is not safe. I have met many dogs as a volunteer at Austin Animal Center, our local municipal shelter for the City of Austin and Travis County, who arrived at the shelter as strays, sometimes sustaining serious injuries after being accidentally let out of their fenced-in yards, or after having dug their way under or jumped their way over their yard’s fence, especially when frightened by fireworks or thunderstorms. I have also heard many Austinites tell of their beloved dogs being stolen from their backyards. A friend’s dog was once stolen from her backyard and even held for ransom! My most risk-averse advice would be to do your best to never leave your dog unattended in your yard. The 2021 Safe Outdoor Dogs Act is a much-needed update to 2007’s HB1411, the Unlawful Restraint of Dog law. The 2007 statute did add a subchapter D to chapter 821 of the Health & Safety Code, outlawing restraint, but the statute unfortunately did not define or require adequate shelter or access to drinkable water, allowed the use of chain

Officer Shannon Sims, holding a 40-pound chain removed from a dog, testifies in support of the Safe Outdoor Dogs Act before the Senate Committee on Criminal Justice. Photo courtesy of the Texas Humane Legislation Network.

restraints, and required animal protection/control officers and local law enforcement officers to give a 24-hour warning to dog owners before they could enforce compliance. The last provision meant that dogs were left in those inhumane conditions for 24 hours without the owner curing the situation or for enforcement to be permitted to move forward. Unfortunately, under the 2007 revisions, given the weather extremes we face in Texas, many dogs still suffered horribly and died. The 2021 Safe Outdoor Dogs Act, SB5, supplanted the old subchapter D with subchapter E. This meant that effective Jan. 18, 2022, there were newly added exceptions and definitions to the old law and that some provisions did not carry over. In a nutshell, the 2021 changes lay out the factors that must be present to constitute safe tethering by defining adequate shelter and safe restraint. These factors are very basic. For example, a dog’s collar or harness must fit properly and not impede the dog’s normal breathing or swallowing. The law also has several exceptions. For example, dogs can be restrained on a trolley system; or dog owners with dogs

engaged in sporting, recreational, and agricultural activities are permitted to use chains, and the requirements for adequate shelter and properly fitted collars, etc. do not apply to dogs engaged in these activities. Austin Animal Center has had fencing and doghouse assistance programs in place for many years to help members of our community comply with our local ordinances. Texas Humane Legislation Network has been working with many communities, especially smaller, rural communities, across the state to help residents with their fencing and doghouse needs to comply with the Safe Outdoor Dogs Act. The Austin Bar Animal Law Section is in the preliminary stages of planning to hold an event this year in conjunction with AYLA to help support these efforts to educate our community aboutAUSTIN the new LAWYER law and humane L AL treatment of A dogs. Footnotes 1. Tex. Health & Safety Code ch. 821 (adding subch. E, Unlawful Restraint of Dog). 2. SB5 was approved in the third called session of the 2021 legislative session. The final bill is available at Tex. Legislature Online (last accessed Mar. 14, 2022), https://capitol. texas.gov/tlodocs/873/billtext/pdf/ SB00005F.pdf#navpanes=0.

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Estate Planning Is for All of Us BY IFEOMA “IFFY” IBEKWE

Iffy Ibekwe is the principal attorney of Ibekwe Law, PLLC and has practiced law for over 15 years. She’s a graduate of The University of Texas at Austin (undergraduate and law school). Ibekwe is the current board president for Be the Bridge, an international nonprofit that empowers people toward racial healing, equity, and inclusion. The married mom of four children is also a weekly contributor to Above the Law, the largest online legal community in the world.

hen is the last time you thought about estate planning? How about creating a will? If you are from a marginalized community, the answer might be never. Instead, you may be experiencing guilt and shame that you don’t have a will. You may be alarmed by the cost of hiring a lawyer to prepare all the required documents. You may even be wondering whether estate planning is for someone like you. I hear you. Estate planning can be overwhelming. Talking about death, planning for incapacitation, navigating taxes, and protecting your child is not as sexy as mastering the latest Cardi B. TikTok dance or learning how to become a millionaire in six weeks. Don’t let this stop you. Estate planning allows you to leave behind an impactful legacy and transfer wealth to make it easier on the people 12

AUSTINLAWYER | APRIL 2022

and causes that come after you. I used to feel so much shame that I (a lawyer!) hadn’t established an estate plan to protect myself and my loved ones. Shame and embarrassment are common feelings that many women express when questioned about estate planning. However, these emotions do nothing but leave us stuck. We must change the narrative from one of shame to empowerment if we expect to move the needle and protect wealth in marginalized communities. Women of color are excluded disproportionately from setting up and transferring wealth intergenerationally. This exclusion is due to systemic racism, lack of access, lack of knowledge about protecting ourselves and our loved ones, and other barriers. Particularly, those of us belonging to Black and Latinx communities are left further behind in wealth accumulation. This is not OK. Let’s look at the data: • In 2017, AARP reported that 78% of millennials and 64% of Gen Xers do not have a will. • According to a report by The Center on Wealth and Philanthropy at Boston College, American estates will transfer around $59 trillion from approximately 94 million estates between 2007 and 2061. Of the $59 trillion, beneficiaries will receive $36 trillion between 2007 and 2061, while $5.6 trillion will go to federal estate taxes. • According to a 2017 report by the Institute for Policy Studies and Prosperity Now, Black people are on track to have a medium income of zero by 2053. Latinx people are on track to have a medium income of zero by 2073. • These statistics are enlightening, alarming, and sometimes discouraging. Bridging the wealth gap for women and people of color will not be ac-

Women of color are excluded disproportionately from setting up and transferring wealth intergenerationally. This is not OK. complished by estate planning alone, but it is a critical factor in closing the gap. Want to know how I know? I am a successful, Black woman estate-planning attorney who has helped hundreds of women and families establish wills, trusts, and other legal documents. I help activate women to take agency over their lives and build impactful legacies. It took my beloved father’s passing to open my eyes and understand how invaluable estate planning is—especially for women. My father died in 2004, and because he didn’t have a will in place, I watched my mom experience the grief of his loss while tying up the loose ends of his life in probate court—at a considerable cost. The first thing she did after that difficult process was to create an estate plan so my brothers and I wouldn’t have to endure the same stress in the event of her passing. She wanted to make sure that her healthcare agency was intact and to secure her intergenerational wealth transfer to her children. My mom was the catalyst for change in the trajectory of our family. I will never forget that. I followed my mom’s lead by setting up my estate plan after my first child was born. It was one of the most empowering decisions I’ve ever made as a woman. Let me be honest with you: Establishing an estate plan allowed me to preserve my agency and communicate my wishes to key family members and friends. Estate planning gave me immeasurable peace now that my affairs are in order—especially in

a climate with so much political, moral, and ideological turmoil. I have seen the distress caused when women do not have their legal affairs in order. I’ve also seen many women and families of color struggle because they hadn’t prepared for an unforeseen health crisis or death. Because of this, I am often asked to contribute to a crowdfunding campaign for a funeral. Every time I receive a request to donate and help alleviate some of the financial burdens a funeral can place on a family, I see a missed opportunity. For example, I have seen that pooling resources are a longstanding (and often necessary) activity for many Black people, and I never want to take away from our communal nature. Communitymindedness is one of the most beautiful aspects of the African diaspora. Many Black people continue the crowdfunding practice and sometimes take out predatory loans to bury their loved ones. Such practices have far-reaching historical significance because funeral homes and cemeteries across America were segregated. Most continue to be. When my dad passed away in Shreveport, Louisiana, many funeral attendees were shocked that he was buried in the “white section” of the cemetery. Even in death, Americans remain segregated. Historically, marginalized groups haven’t had access to insurance and other means for planning and building wealth. White insurance providers would only sell limited insurance to Black, Brown, and Asian communities (usually, death benefits or funeral coverage). They would only offer

• Women are almost four times as likely to be widowed. • Women are living longer than ever before, extending widowhood. • More women than ever before are divorced or choose not to marry. • Many women are inheriting twice, from parents and then from a spouse. • More women own businesses or are entering professions with higher salaries, such as doctors, lawyers, or business executives.

Now that marginalized communities have more access to wealth preservation tools, we must leverage opportunities to build wealth with insurance—for everyone. the full suite of insurance to their white customers. This is no longer the case, but the effects of these discriminatory practices linger because marginalized communities do not utilize insurance

as much as white communities do. Listen, white people do not work harder to get ahead. That is just not the case. Now that marginalized communities have more access to wealth preser-

vation tools, we must leverage opportunities to build wealth with insurance—for everyone. While the fight for women’s equality is far from over, we are at a beautiful stage in our history. The United States has elected the first woman vice president, Kamala Harris, into office. We are also at a moment where women’s roles are changing in finances and life decisions. According to a Concentus Wealth Advisors report:

However, most of these statistics are attributable to white women. Women of color are absent from conversations involving wealth transfer, financial independence, and estate planning. This article is a call to action for all women. If you are ready to take charge of your life and protect yourself and your assets, I am talking to you. Together, we will start where you are by getting your affairs in order. ContactLAWYER an estate AUSTIN AL AL planning attorney to begin.

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The State Bar of Texas Wants Your Input District 9 Grievance Committee Seeks Five Attorney Members BY ADAM SCHRAMEK

T Adam Schramek is a litigation partner at the law firm of Norton Rose Fulbright. Schramek is also a past president of both the Austin Bar and the Austin Young Lawyers Association and served on the board of directors of the State Bar of Texas.

he State Bar of Texas is proud of its tradition of utilizing local volunteers to serve on grievance committees and seeks five attorneys to become members. The commitment of the district grievance committee members is vital to the success and effectiveness of the attorney discipline system. District grievance committees are composed of two-thirds lawyer members and one-third public members, each of whom serves a three-year staggered term and is eligible to serve two consecutive terms. The district grievance committees perform two critical roles in the discipline system: • Review complaints presented by the chief disciplinary coun-

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sel and determine whether the case should be dismissed or proceed to prosecution; and • Sit as an administrative tribunal to determine whether professional misconduct was committed and assess an appropriate sanction. The most common complaints involve attorneys practicing criminal, family and personal injury law. District 9 Grievance Committee members are nominated by District 9’s board representatives, which are currently Adam Schramek, Todd Smith, and Kennon Wooten. It is important to the public and the lawyers of Texas for the members of the district grievance committees to

APRIL 11 VOLUNTEER TO SERVE ON GRIEVANCE COMMITTEES Interested in learning more? Email kwooten@scottdoug.com

represent with fairness the racial, ethnic, and gender makeup of the districts they serve. Accordingly, District 9’s directors are requesting interested attorneys to submit their resumes to kwooten@scottdoug.com by April 11, 2022. Use your skill to support the AUSTIN LAWYER AL AL judicial process!

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ABOVE: (from left) Arnold, DeMuro, Roarty, and Stinson

Rebekah Duke April Griffin Hallie Hicks Deanna Hogan Benedict James Esteban Sandoval Leonard Weiss, MD Maria Zavala

ON THE MOVE

Patrice “Patty” Arnold joins Niemann & Heyer, LLP, representing condominium and homeowner associations. Arnold has closed Arnold and Associates. She graduated from the University of Texas School of Law in 1975. Arnold was on the State Bar of Texas Grievance Committee from 2001 to 2007 and served as committee chair for one year. Paul R. DeMuro, PhD, joins Nossaman LLP. Demuro was formerly chief legal officer of

health and wellness for the Royal Palm Companies in Miami, FL. DeMuro is also a former chair of the Health Law Section with the Austin Bar Association. Rekha Roarty is promoted to partner at Bollier Ciccone LLP. She works in the construction and commercial litigation sections of the firm and has been recognized as an Austin Monthly magazine Top Attorney in Construction Law since 2020 and Best Lawyers in 2021. She is a Baylor Law alum, a member of the Junior League of Austin, and a member of the Texas Bar College.

Susannah Stinson joins Bollier Ciccone LLP as a partner. She is board certified in family law and has handled hundreds of cases representing a range of clients in divorces involving complex property issues, modifications, child custody, protective orders, prenuptial agreements, paternity, and enforcement cases. She is AV-Rated by Martindale Hubbell and a Super Lawyer as recognized by Thomson Reuters. Stinson is a graduate of the University of Texas at Austin and St. Mary’s University School of Law.

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THIRD COURT OF APPEALS CIVIL UPDATE The following are summaries of selected civil opinions issued by the Third Court of Appeals during February 2022. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of March 3, 2022.

ADMINISTRATIVE LAW: Court holds statutory requirement to obtain approval to sue is not jurisdictional. Travis Cent. Appraisal Dist. v. Texas Disposal Sys. Landfill, Inc., No. 03-20-00122-CV (Tex. App.—Austin Feb. 18, 2022, no pet. h.) (mem. op.). After owner successfully challenged the unequal appraisal of its property before the appraisal review board (“ARB”), TCAD sued challenging market value. Owner filed a plea to the jurisdiction contending that TCAD failed to satisfy Tax Code § 42.02(a)’s requirement to obtain written approval of the ARB’s board of directors to file suit. The trial court granted the plea and dismissed TCAD’s claims. The court of appeals concluded that § 42.02(a) was not jurisdictional. The court further held that the trial court had jurisdiction over TCAD’s market-value challenge, concluding that TCAD’s lawsuit was not limited to the issues owner raised at the administrative hearing.

ORIGINAL PROCEEDING: Court grants mandamus relief when a temporary administrator was appointed without bond. In re Robinett, No. 03-21-00649CV (Tex. App.—Austin Feb. 9, 2022, orig. proceeding) (mem. op.). Relator challenged the trial court’s appointment of a temporary administrator without a hearing and without setting a bond. In response to the challenged temporary administrator’s application, Relator failed to file a written opposition. Thus, there was no abuse of discretion for the failure to hold a hearing on the appointment. The court held that the trial court abused its discretion in appointing a temporary administrator without bond. Estates Code § 452.003(4) requires a bond unless an applicant meets certain exceptions that require an evidentiary hearing to establish. Relator lacked an adequate appellate remedy because the appointment of a temporary administrator is interlocutory and not immediately appealable. The court granted mandamus relief. TORT CLAIMS ACT: Court dismisses claims based on conduct within scope of employment. Manley v. Wise, No. 03-21-00120CV (Tex. App.—Austin Feb. 24, 2022, no pet. h.) (mem. op.). Wise sued Manley and others for injuries sustained during APD cadet training. Defendants filed a plea to the jurisdiction under the TTCA, Tex. Civ. Prac. & Rem.

Code ch. 101. The trial court granted the plea as to the City and APD but denied it against defendants individually. TTCA § 101.106(f) requires dismissal of a plaintiff’s suit if it is based on conduct within the scope of defendant’s employment and could have been brought against the governmental entity under the Act. The court of appeals held that defendants were acting in the scope of their employment in conducting the training exercises. Further, the court held that Wise’s claims could have been brought against City under the TTCA. Thus, Wise had to timely dismiss the individual defendants and name City as a defendant. Wise failed to do so. Thus, the trial court erred in denying the plea to the jurisdiction. The court reversed and rendered. Appellate procedure: Court rejects permissive appeal that relied on disputed facts. Progressive Cnty. Mut. Ins. v. Wade, No. 03-21-00415-CV (Tex. App.—Austin Feb. 10, 2022, no pet. h.) (mem. op.). Following a car crash with Stovall, Wade filed a UM/UIM claim. Progressive denied the claim under the self-insurer exception, which excepts UM/UIM benefits for cars owned or operated by a self-insurer. In its motion for summary judgment, Progressive asserted that Stovall was driving a rental car and that the rental company was self-insured. Wade cited the

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.

accident report that listed Stovall as the car’s owner and insured by another carrier. The trial court denied the motion but granted the request for a permissive interlocutory appeal on application of the self-insured exception. The court of appeals concluded that the existence of conflicting evidence regarding ownership and the self-insured status of Stovall’s car established that the claim did not turn solely on a legal issue but instead included factual determinations. Accordingly, the court denied the petition for AUSTIN LAWYER AL AL permissive appeal.

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APRIL 2022 | AUSTINLAWYER

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 criminal opinions issued by the Third Court of Appeals from September 2021. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of March 1, 2022. LESSER-INCLUDED OFFENSES – OCCLUSION ASSAULT: Simple bodily-injury assault was not lesser-included offense of occlusion assault. McCall v. State, 635 S.W.3d 261 (Tex. App.—Austin 2021, pet. ref’d). McCall was charged with assaulting the victim by impeding her breathing, an offense known as occlusion assault. On

the State’s request and over McCall’s objection, the trial court’s charge to the jury included a submission on the misdemeanor offense of bodily-injury assault. The jury acquitted McCall of occlusion assault but convicted him of the misdemeanor offense. On appeal, McCall argued that simple assault was not a lesser-included offense of occlusion assault. The appellate court agreed. Following Ortiz v. State, 623 S.W.3d 804 (Tex. Crim. App. 2021), the court concluded that “specifying an occlusion injury is exclusive of proof of other bodily injuries.” In other words, proving a different bodily injury would prove a different kind of assault altogether, not a lesser one. The court thus held, “When, as here, the State charges only occlusion assault in an indictment that does not modify occlusion assault’s statutory elements, the State may never receive, over the defendant’s objection, a submission of simple bodily-injury assault as a lesser included offense of occlusion assault.” The court also concluded that McCall was harmed by the erroneous instruction: “[A]n error that allows a jury to convict a defendant for an uncharged offense that was not a lesser included offense of the one charged [] harms the defendant.” However, because the evidence was sufficient to convict McCall of the lesser offense, the court held that there was “no legal-in-

PATIENT

sufficiency double-jeopardy bar to retrying McCall for simple bodily-injury assault.” DEFENDANT BEHAVIOR DURING TRIAL – EFFECT OF DEFENDANT SMILING AT WITNESS: Defendant not prejudiced by juror seeing him smile during witness testimony. Jones v. State, No. 03-19-00797CR (Tex. App.—Austin Sept. 2, 2021, pet. ref’d) (mem. op., not designated for publication). Jones was convicted of murder and sentenced to life imprisonment. During the punishment phase of trial, one of the State’s witnesses, a correctional officer at the jail where Jones was detained, testified that Jones “regularly masturbated in front of her and other female employees.” During this testimony, Jones “sat up and smiled” at the witness, and at least one juror noticed this behavior. Among other issues on appeal, Jones argued that this deprived him of a fair trial because the juror “considered a fact not in evidence.” The appellate court disagreed. The court compared Jones’s conduct to the conduct or expressions of spectators during trial and explained that in those cases, the defendant must establish “a reasonable probability that the expression interfered with the jury’s verdicts.” To meet that burden, the defendant must show that the “external jury influ-

PRACTICAL

ence” produced either actual or inherent prejudice. Jones failed to meet that burden. “Nothing in the record from the trial proceedings establishes that Jones’s behavior caused any disruption to the trial,” and although the juror averred that she observed Jones’s behavior during trial, the juror also explained that it had no effect on her sentencing decision. Moreover, Jones’s behavior was not so extreme that it caused him “inherent prejudice.” The court also concluded that the trial court did not err by failing to sua sponte instruct the jury to disregard Jones’s behavior. PRESERVATION OF ERROR – IN PARI MATERIA CLAIMS: Defendant failed to preserve claim that he was prosecuted under the wrong statute. Bias v. State, No. 03-20-00164CR (Tex. App.—Austin Sept. 1, 2021, pet. ref’d) (mem. op., not designated for publication). Bias was charged with and convicted of an offense under one statute but claimed for the first time on appeal that he should have been convicted under a more specific statute relating to the same subject matter. In other words, he was arguing that the two statutes were in pari materia and that he should have been convicted under the more specific statute. The court concluded that by not raising this argument in the trial continued on page 31

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FEDERAL CIVIL COURT UPDATE The following are summaries of opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are overviews of particular aspects of each opinion; please review the entire opinions.

> STANDING: Whether relevant state law permits a plaintiff to bring a wrongful death claim under § 1983 is a question of prudential standing rather than Article III standing, and a parent has Article III standing to file suit over the wrongful death of a child. Abraugh v. Altimus, 26 F.4th 298 (5th Cir. 2022). Karen Abraugh’s son Randall died while in custody as a pretrial detainee in the Bossier Maximum Security Facility in Louisiana. Although Randall was identified as a detainee who required monitoring for alcohol withdrawal syndrome and other conditions, prison officials allegedly placed him in a cell without access to water, failed to monitor him, and failed to provide him with any medication of liquids. He was found dead the next day. Karen filed a complaint in federal court both individually and on behalf of Randall’s estate, asserting civil rights violations under 42 U.S.C. § 1983 and state law wrongful death and survival claims against various

defendants whom she alleged were responsible for Randall’s death. Karen’s complaint alleged that Randall was survived by his wife, as well as his biological parents and siblings. Karen subsequently amended her complaint to substitute Randall’s wife and child as plaintiffs. The defendants moved to dismiss, arguing that Karen lacked standing under Article III of the Constitution because Florida law does not provide her a right

reversed the district court’s holding that Karen lacked Article III standing. Although neither side disputed that Louisiana statute gives only Randall’s surviving wife and child—not his mother Karen—the right to sue for wrongful death, the Fifth Circuit explained that this was a defect of prudential standing, not Article III standing. Article III standing is a jurisdictional determination. Stated differently, a judge must deter-

Article III standing is a jurisdictional determination. Stated differently, a judge must determine if the plaintiff suffered an injury in fact that is traceable to the challenged action of the defendant and is likely to be redressed by a favorable decision. Prudential standing, by contrast, is not a jurisdictional issue but instead presents a merits question: who, according to the governing substantive law, is entitled to enforce the right in question. to sue for her son’s death. The district court granted the motion, holding that Karen lacked Article III standing and that her later amendment could not cure the defect because Karen was the only plaintiff named in the original complaint. On appeal, the Fifth Circuit

mine if the plaintiff suffered an injury in fact that is traceable to the challenged action of the defendant and is likely to be redressed by a favorable decision. Prudential standing, by contrast, is not a jurisdictional issue but instead presents a merits question: who, according

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to the governing substantive law, is entitled to enforce the right in question. Following the holdings of sister circuit courts, the Fifth Circuit concluded that a parent has Article III standing to sue over the wrongful death of a child. The defendants also argued that Karen waived her argument concerning Article III standing. As the Fifth Circuit noted, while the lack of Article III standing (and, thus, subject matter jurisdiction) cannot be waived, arguments in favor of Article III standing, like all arguments in favor of jurisdiction, can be forfeited or waived. Nevertheless, the court concluded that Karen didAUSTIN not forfeit her Article LAWYER AL AL III standing argument.

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CRIMINAL COURT NEWS

“Opening the Door” Cannot Excuse a Confrontation Clause Violation 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.

n January 2022, the United States Supreme Court reversed and remanded a New York supreme court and, in a majority opinion authored by Justice Sotomayor, the Court reaffirmed that the Confrontation Clause requires that the reliability and veracity of evidence against criminal defendants be tested by cross-examination, not determined by a trial court. In Hemphill v. New York, the Court held that Hemphill had properly presented to the trial court a claim that the admission of a third party’s plea allocution violated his Sixth Amendment

right to confrontation and that the admission of the third party’s plea allocution, without allowing Hemphill the right to correct a witness’s misleading argument, violated his right to confront the witness against him. In her majority opinion, Justice Sotomayor reaffirmed the Court’s landmark Confrontation Clause decision, Crawford v. Washington, describing the right to confrontation as one of the “bedrock constitutional protections afforded to criminal defendants.” For Confrontation Clause purposes, the Court held, even the possibility of a presentation by a defendant of evidence that may create a misleading impression is not sufficient reason to set aside the protection that the confrontation of a witness provides. The events precipitating Hemphill’s arrest and trail are somewhat complex. Two groups of people were involved in a fight in the Bronx. A person returned to the scene of the fight later and fired shots from a 9-millimeter handgun. One of the bullets struck and killed a two-year-old bystander. The police charged Nicholas Morris with murder but allowed Nicholas to plead to

In her majority opinion, Justice Sotomayor reaffirmed the Court’s landmark Confrontation Clause decision, Crawford v. Washington, describing the right to confrontation as one of the “bedrock constitutional protections afforded to criminal defendants.” a lesser charge of possession of a .357-magnum. Years later, the State charged Hemphill with the murder of the young bystander. At trial, Hemphill’s attorneys had a fair amount of evidence in his support—the State had originally indicted and tried Morrisfor the murder, but then after they were unable to secure a conviction of Morris, they changed course and accused Hemphill. Hemphill’s attorneys, of course, attempted to elicit testimony that certain eyewitnesses had identified Morris as having been the shooter. One of those witnesses had previously testified to a grand jury that Morris had fired the fatal shots but changed her story at trial. Morris, meanwhile, had pled guilty to the possession

of a firearm charge after LAWYER his murAUSTIN AL AL der trial ended in a mistrial. Footnotes 1. U.S. Const. amend. VI. (“ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”) 2. 142 S.Ct. 681 (Jan. 20, 2022). 3. 541 U.S. 36 (2004). 4. 142 S.Ct. at 690. 5. Id. at 691. 6. Id. at 686. 7. Id.

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Representing Transgender Clients Pointers for Working with Transgender and Nonbinary Clients in the Criminal Justice System BY ELIZABETH DUGGAN AND RICK COFER continued from cover

Elizabeth Duggan is an associate attorney at Cofer & Connelly, PLLC.

Rick Cofer is a partner at Cofer & Connelly, PLLC. He is a long-time board member of Texas Health Action, the largest provider of gender affirming care in Central Texas.

with others without permission as they may not feel comfortable sharing their outing. Do not assume your client’s preferences.

of pain. You should be a source of support and comfort for the individual.

Acknowledge and verify feelings. More than likely a transgender or nonbinary client has been discriminated against. Even more likely is that you have not been discriminated against in the same way that your client has. We have all had our feelings hurt by someone before and can all empathize with the feeling

Prepare your client. To judges and court officials, clients start out as just names on a piece of paper. Our job as defense attorneys is to humanize our clients before the court. This challenge is even more prevalent when the name is one your client no longer identifies with. Warn your client that officers of the court may solely rely on their legal name and

birth sex on legal documents. It is important to be forthcoming with your client about the challenges they will face in a system that has not been designed or adapted to respect changed or fluid gender identities. Be an ally. Above all, you are your client’s biggest advocate. You are representing them in what could be the most challenging time in their lives, and it can be filled with discomfort and discrimination. It is important as an attorney to remain steadfast in your loyalty to your client. Acknowledge what you do not know, never assume, validate feelings, prepare, and be the ally.3 Listen

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to the story your client shares and remain dedicated in your opportunity to advocate for and alongside them. In closing, we are pleased to inform you that the case referenced in this article was dismissed AUSTIN LAWYER AL AL against our client. Footnotes 1. Human Rights Campaign, https://www.hrc.org/resources/ understanding-the-transgendercommunity (last visited Jan. 13, 2022). 2. NATIONAL CENTER FOR TRANSGENDER EQUALITY, https:// transequality.org/issues/resources/ frequently-asked-questions-abouttransgender-people (last visited Jan. 13, 2022). 3. GLAAD, https://www.glaad.org/ transgender/allies (last visited Jan. 13, 2022).

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VLS Returns to In-Person Legal Advice Clinics BY MEGHAN ALEXANDER

Meghan Alexander, with Gottfried Alexander Law Firm, is an avid supporter of VLS and one of its regular phone clinic volunteers. Alexander has participated in over 150 mediations, over 300 bench trials, and several jury trials.

olunteer Legal Services of Central Texas plans to resume in-person legal clinics. VLS’s in-person clinics have been paused since March 2020. Details are currently being worked out for a new partnership with Austin Community College (ACC) to offer the new clinics in a venue to better serve the community’s needs. The in-person clinics will be held on designated Wednesdays from 6 – 8:30 p.m. VLS will also continue to hold weekly telephone advice clinics. ABOUT VLS CLINICS VLS has historically held in-person clinics to provide the Central Texas community with legal advice and representation. In April 2020, VLS launched telephone clinics to safely address the legal needs of the community during COVID. Through the phone clinic, individuals can receive no-cost legal advice over the phone through licensed attorney volunteers. Depending on case type and eligibility, an individual may qualify for additional legal services. Attorney volunteers staff the clinic by providing advice over the phone on civil 24

AUSTINLAWYER | APRIL 2022

issues such as divorce, child custody, wills and probate, eviction, bankruptcy, and more. The phone clinics will continue to occur on Tuesday mornings from 9 a.m. – 1 p.m. and Wednesday evenings from 5 – 8 p.m. Applications for assistance will remain online. The application period for both in-person and phone clinic will open Monday mornings at 9 a.m. and will close on Wednesdays at 5 p.m. or when applications have reached capacity. When filling out an online application, applicants will choose either in-person or phone advice. STAFFING CLINICS In-person clinics and phone clinics are operated by VLS staff, and attorney volunteers, as well as non-attorney community members who volunteer. Volunteer attorneys at the in-person clinics are asked to consult with four applicants during their shift. Attorneys may spend up to 30 minutes with each applicant. Volunteer attorneys at the phone clinics are asked to consult with two to four applicants during their shift, depending on the length of the shift. For both clinics, attorneys will be provided an assignment packet with the information on the applicant, their legal needs, and any documents they have available. These assignment packets are provided to attorneys at least one day in advance of clinic. Attorneys at in-person clinics may also be asked to consult with walk-in appointments. Additionally, there are several other volunteer opportunities for attorneys, paralegals, law students, interpreters, and others who want to be a part of

ensuring that the members of our community have access to legal representation. In addition to providing legal advice at our in-person and phone clinics, we also utilize volunteer attorneys to provide direct representation. Opportunities for direct representation include volunteering for the Eviction Taskforce, representing a survivor of abuse in a family matter, and representing a client on a civil legal case. Phone Clinic Volunteer Opportunities VLS needs attorneys to volunteer for shifts giving advice by phone on issues related to probate, debt, employment, general civil issues and family related matters. Volunteers can sign up in advance for reoccurring weekly or monthly shifts. A particularly pressing need is for probate attorneys to give legal advice at VLS phone clinics. Every week, VLS serves multiple families needing advice on probate and estate planning. To keep up with the demand for this type of advice, VLS needs probate attorneys to dedicate at least one morning or evening each month to provide advice by phone. We are seeking experienced attorneys who are comfortable providing advice on probate matters. Alternately, VLS also seeks back-up probate attorney volunteers, who are willing to be on stand-by in the event a scheduled volunteer is unavailable. Eviction Task Force The VLS Eviction Task force was launched to help indigent tenants facing eviction in Travis County. A culmination of many efforts over the last year, VLS’s

“While the range of legal issues facing applicants varies, the VLS staff always provides the necessary resources and prepares the volunteer attorneys to provide sound legal advice.”

innovative representation system puts volunteer attorneys right in the courtroom where they’re needed most. With the assistance of experienced and knowledgeable mentors and helmed by VLS staff attorneys, volunteers appear at eviction dockets via Zoom and represent assigned clients currently facing eviction. Family Law Cases The VLS Family Law team needs attorneys who can represent survivors of abuse in family law matters. In addition to representing survivors, the family law team also needs assistance with representation of clients in probate, estate planning and guardianship matters. General Law Cases The VLS General Law team has a great need for attorneys to take a case. Cases available include debt, bankruptcy, employment, consumer, expunctions, public benefits, and administrative. In-Person Clinic Advice Attorney Volunteer Opportunities VLS seeks attorney volunteers to meet with clients at the new in-person clinic and give advice on Family Law issues, Probate related questions, and General Law matters including; Debt, Employment, Eviction and Housing. In-Person Clinic NonAttorney Volunteer Opportunities During our in-person clinic, VLS will need paralegal and law student volunteers to greet attendees, keep time, and help applicants with technology (filling out applications, scanning and e-filing documents as needed. In addition, VLS needs Spanish interpreters to provide interpreting services. VLS OFFERS A STELLAR VOLUNTEER EXPERIENCE VLS is honored to host numerous volunteer attorneys who sign

I began volunteering with VLS after my retirement to keep my hand in the law and give back to the community. The legal clinics give me both flexibility and the opportunity to assist clients who would otherwise have little or no access to an attorney. up for reoccurring phone clinic shifts monthly and weekly. Dan Fabian with DLA Piper is a dedicated volunteer who has been volunteering at VLS clinics since 2019. He makes himself available weekly to participate in phone clinic shifts giving advice to general law applicants. Fabian shared, “I have found that the clinics provide a unique opportunity to efficiently and effectively provide legal guidance to local residents in need. While the range of legal issues facing applicants varies, the VLS staff always provides the necessary resources and prepares the volunteer attorneys to provide sound legal advice to applicants

and, if appropriate, recommend a referral. During the pandemic we have seen a dramatic increase in applications relating to actual or threatened evictions and it is clear that countless community members are relying on VLS and its volunteers to help them face dire challenges and remain in their homes.” Carolyn Mobley, a long-time VLS volunteer, has experience volunteering in both in-person and phone clinics. When asked about why volunteering was important to her, she conveyed, “I began volunteering with VLS after my retirement to keep my hand in the law and give back to the community. The legal clinics

give me both flexibility and the opportunity to assist clients who would otherwise have little or no access to an attorney. I’m glad to be able to engage with fellow Texans on their legal issues and offer support in a way that many of them desperately need.” No matter if you are helping give legal advice at an in-person clinic, volunteering for a phone clinic shift or representing a client in a family law or general law case, VLS staff and mentor volunteers will be there through the process to help support you. KEEPING VOLUNTEERS, STAFF, AND COMMUNITY SAFE IN THE PANDEMIC VLS is committed to keeping staff, volunteers and the community safe through the pandemic. Safety protocols will follow ACC guidelines, which currently includes wearing masks and social distancing. Also, for those community members and volunteers who do not feel comfortable with in-person clinics at this time, the phone clinic will remain open.

HOW YOU CAN HELP The fact is, VLS could not serve the needs of the community without our dedicated volunteers. The Texas Lawyer’s Creed, Section 1(3), says “I commit myself to an adequate and effective pro bono program.” VLS can be that program for you. The needs and disparities in the Central Texas community continue to grow, as does the need for more volunteers to ensure that poverty is not a barrier to justice. You can sign up for clinic shift on Volunteer Hub or reach out to Director of Pro Bono Services Hollie Toups at htoupsvlsoct.org. If you wish to take a direct representation case, you can reach out to Martha Contreras, family law case supervisor at mcontreras@vlsoct.org for family law cases and Maria Font, the general law case placement coordinator at mfont@vlsoct.org for general law cases. If you need any additional information or have questions, please contact Director of Pro Bono ServicesLAWYER Hollie Toups at AUSTIN AL AL htoupsvlsoct.org.

Ken Davison Greg Bourgeois Eric Galton David Moore Kim Kovach Fred Hawkins Ben Cunningham Lynn Rubinett Lucious Bunton

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Literary References Examples and Commentary BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

ast month I discussed lawyers’ use of literary references and reported on references to 67 well-known authors in appellate briefs filed in local courts. This month I discuss some related topics and then offer some examples with my comments. But first, a short digression. My reading about literary references in legal writing turned up little mention of biblical references. Is the Bible a legal source? After all, there’s a Bluebook rule for citing it: 15.8(c)(iii). More to the point, is the Bible a literary source? My informal polling of some lawyer friends and colleagues was inconclusive. So, simply based on my own interest, I decided to do some limited research on lawyers’ use of biblical expressions—that don’t cite the Bible. I searched the Internet for “biblical expressions that people don’t realize are biblical,” and I found a list of 24 expressions, which can be found on my blog, LEGIBLE.1 Here are some examples: drop in the bucket, fly in the ointment, leopard can’t change his spots, powers that be, and skin of your teeth. I then searched for those expressions, filtered for briefs, and narrowed for the Texas Supreme Court, the Texas Court of Criminal Appeals, and Austin’s Third Court of Appeals. The resulting time period was 1994 to the present. The most commonly used expressions on the list, with the number of appearances in parentheses, were these: • Letter of the law (118) • Powers that be (25) • Go the extra mile (15) • Writing on the wall (14) • Fall by the wayside (12) BACK TO LITERATURE Continuing my research on liter-

ary references in appellate briefs, I searched for the most commonly named literary characters. I relied on a list of 22 well-known literary characters and a few objects, such as the scarlet letter, that I’d found in several Internet searches. The complete list is on LEGIBLE.2 I ran the same type of search previously described. Here are the most frequently mentioned literary characters: • Alice in Wonderland (51) • Frankenstein (34) • Hamlet (30) • The Wizard of Oz (17) • Sherlock Holmes (15) MY RECOMMENDATIONS Given the thousands of briefs filed over the time period I searched, my results show that most briefs don’t include literary references at all—and that’s fine with me. I advise using literary references sparingly for the reasons stated in previous columns: they aren’t legal authority, though they’re occasionally used that way; they can smack of arrogance or showing off—never a good way to score points with a judge; and literary references bring with them the time, place, and circumstances of the original source—and that’s not always great, either. Some examples: One brief from 1996 contained referred to Lohengrin, who I learned was “a character in German Arthurian legend.”3 So no, not the Arthurian legend I had a basic familiarity with from a high-school production of Camelot. No. The German Arthurian legend. Sorry, but for me, that’s too obscure to include in a brief. Another brief referred to The Merchant of Venice character Shylock and unflatteringly com-

My reading about literary references in legal writing turned up little mention of biblical references. Is the Bible a legal source? pared the opponent to Shylock: “[Opponent], upset that [Client] claimed he had no cash, became enraged and decided to take a pound of flesh…. [Opponent] was greedy—but even more greedy than Shylock; [Opponent] not only stole [Client’s] money and valuables, but took a pound of flesh also.” No. Setting aside the overblown tone and the personal attacks, there are the antisemitic overtones of using the character Shylock in this way. Here’s a lighthearted example: Supreme Court Justice Elena Kagan received widespread attention and praise for recently citing a comic book in an opinion: “What we can decide, we can undecide. But stare decisis teaches that we should exercise

that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: ‘Spider-Man,’ p. 13 (1962) (‘[I]n this world, with great power there must also come—great responsibility’).” Stan Lee? Spiderman? That’s interesting and, to some readers, fun. Yet I hesitate to commend it. When you’re a Supreme Court Justice, cite what you want. Until then,AUSTIN use literary references LAWYER ALall. AL sparingly if at Footnotes 1. https://sites.utexas.edu/legalwriting/. One useful site: https://www. mentalfloss.com/article/61964/18everyday-expressions-borrowedbible 2. https://sites.utexas.edu/legalwriting/ 3. https://en.wikipedia.org/wiki/ Lohengrin

APRIL 2022 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA 2022 Board Election Welcome New AYLA Board of Directors

he following candidates ran unopposed for the Austin Young Lawyers Association officers and board of directors. The new board takes on July 1, 2022, along with Blair Leake, who will serve as AYLA’s president. BLAIR LEAKE, President

Leake has been on AYLA’s board since 2017, and has served as secretary, treasurer, and president-elect. Leake is a shareholder at Wright & Greenhill, P.C. As our current president-elect, he has continued his work rebuilding and running the AYLA volunteer arm—the Community Service Days Committee—which hosts monthly volunteer events with local charities. SARAH HARP, President-Elect

Harp ran unopposed for presidentelect. She is an Assistant Attorney General in the Criminal Appeals Division of the Texas AG’s Office. She has previously been a director and secretary of AYLA and is the current treasurer. She received the Outstanding Committee Chair Award for 2020-21.

EMILY MORRIS, Treasurer

Morris ran unopposed for treasurer. She is the principal attorney of The Morris Law Firm, PLLC, which focuses on corporate and real estate matters for small business owners. Morris is dedicated to the Austin legal community, demonstrated by substantial service to the Austin Bar, AYLA and Travis County Women Lawyers’ Association. CIARA PARKS, Secretary

Parks ran unopposed for secretary. She is general counsel for the Texas Board of Law Examiners. She was a members of the Leadership Academy Class of 2019 and director in 2021-22. Parks has a B.S. from the University of Dayton 2000, JD from Thomas Cooley Law School, and was the former assistant district attorney for Travis County from 2017 to 2020. She was also assistant prosecuting attorney in Montgomery County, Ohio from 2009 to 2016. DIRECTORS The four unopposed board members will join directors Eric Cuellar, Jenna Malsbary, Lena Proft, and Gracie Wood Shepherd whose terms expire in 2023.

DAVID HOLMES

MEGHAN KEMPF

David Holmes practices education law in the Austin office of the Walsh Gallegos law firm. He has been in AYLA since 2018 and served this past year on the AYLA board as a representative of the Austin Black Lawyers Association. Holmes enjoys basketball, food, music, dogs, and shoe collecting.

Meghan Kempf believes AYLA provides incredible opportunities for service, development, and networking. She’s worked with several committees and in a variety of leadership positions since joining in 2014, and understands how to best serve members and the community.

JOSEPH KEENEY

Samantha McCoy works for Thompson Coe as an appellate associate. She also lobbies to expand rights of survivors of violence. A summa cum laude graduate from St. Mary’s University, McCoy is interested in bringing more brand-new lawyers into AYLA to connect, AUSTINnetwork, LAWYER AL AL and grow the organization.

Joseph Keeney is a litigator with the Texas Attorney General’s Office. He’s been an active member of AYLA since 2015. Last year, he co-founded AYLA’s Health and Wellness Committee. As a director, he hopes to further develop the Health and Wellness Committee, promote outdoor and fitness activities, and increase service opportunities for members.

SAMANTHA McCOY

UPCOMING EVENTS SATURDAY, APRIL 9, 2022 AYLA Inaugural Crawfish Boil Hilgers House, 712 W. 16th St. Noon to 4 p.m. Tickets available at ayla.org. Visit ayla.org for a complete list of events and updates.

AUSTINLAWYER | APRIL 2022

AUSTIN YOUNG LAWYERS ASSOCIATION

Kicking Off the 2022 Leadership Academy BY GRACIE WOOD SHEPHERD

he 2022 Austin Bar Association/Austin Young Lawyers Association Leadership Academy is underway and off to a great start!

The Leadership Academy is celebrating its 10th anniversary this year, with the largest class to-date, of 32 class members. Although the Omicron variant of Covid-19 delayed it a bit, the

Leadership Academy Class of 2022.

FREE LEGAL CLINIC FOR VETERANS WE WANT SUPPORT LOCAL VETERANS 2022 FreeYOU! Legal Advice Clinic Dates

The Austin Bar Association seeks volunteers for free Monday, January 10legal clinics for veterans. Join us in 2022 at one of our monthly clinics. These clinics provide valuable Monday, February 14 assistance to those who have served in the military. From cases involving Monday, March 14 family law, to wills, criminal law, bankruptcy, landlord/tenant, guardianship, and more, there are many ways you can April contribute. Monday, 11 Volunteer attorneys provide brief legal advice for 10 to 15 minutes. Look at the list for clinic dates Monday, May 9 and contact doug@austinbar.org to get started.

The Leadership Academy is celebrating its 10th anniversary this year, with the largest class to-date, of 32 class members. committee was able to dynamically adjust and the class participated in their annual retreat, in-person, to kick off the year on Feb. 18, 2022, at University Federal Credit Union Plaza (thank you to UFCU for allowing the Academy to use their facilities!). The class heard from Honorable Karin Crump and Austin Bar President, David Courreges (both also founders of the Leadership Academy), Justice Chari Kelly, Honorable Rudy Metayer, AYLA President-Elect, Blair Leake, and Kate Lincoln-Goldfinch, of Lincoln-Goldfinch Law. Additionally, Justice Debra Lehrmann led the class on a tour of our beautiful and historic Texas Supreme Court. The class ended their retreat at a happy hour generously sponsored by the Vaught Law Firm. This year, the Leadership Acade-

my is led by two co-chairs, Elliott Beck and Sam Denton, as well as supported by the following executive committee members: Jillian French, Sarah Harp, Alan Lin, Kara O’Shaughnessy, Ciara Parks, Maximilian Raileanu, and Gracie Wood Shepherd. On March 2, 2022, the Leadership Academy class had the privilege of attending their monthly meeting at Austin City Hall to hear from Austin City Manager Spencer Cronk, who spoke about our rapidly growing community and future city initiatives. The Leadership Academy class is in the process of selecting their class project, with more informaAUSTIN LAWYER L AL tion to come very A soon. Gracie Wood Shepherd as an associate attorney at Friday Milner Lambert Turner.

Monday, June 13 Mon., July 11 Monday, July 11 Mon., Feb. 14 Mon., Aug. 8 Monday, August 8 Mon., Mar. 14 Mon., Sept. 12 Monday, September 12 Mon., Apr. 11 Mon., Oct. 10 Monday, October 10 Mon., May 9 Mon., Nov. 14 Monday, November 14 Mon., June 13 Mon., Dec. 12 Monday, December 12 Mon., Jan. 10

1:00 p.m. to 4:00 p.m. To be placed on the Virtual Clinic List, you must fill out the application at this link: https://memcentral.wufoo.com/forms/veteran-intake-form

*All dates are subject to change to Virtual Clinics depending on COVID-19 circumstances. For any questions about the Legal Advice Clinic or Legal Assistance Program please contact the Austin Bar Association at 512-472-0279x110. The Texas Access to Justice Foundation and Austin Bar Foundation provide support to this program.

Sam Denton, Leadership Academy co-chair, speaks to the 2022 Leadership Academy. APRIL 2022 | AUSTINLAWYER

PRACTICE POINTERS

Tax Tips From a Seasoned Attorney BY JOHN PEARCE JD/CPA TX, LA, GA, KY

Not all deductions and losses are created equally. Whether a casualty-loss deduction is taken depends on many factors. This is a question that gets complicated in a hurry.

John Pearce is joint-licensed as an attorney and CPA in Texas since 1989, in Louisiana, Georgia and his home state of Kentucky since 1983. Pearce practices actively in Austin in both disciplines, is active in Austin Bar Association’s Business, Corporate and Tax Sections. He gives generously of his time and talent to a remarkably diverse group of local charitable organizations that run the gamut from Angel Flight to Shadow Cats. Meow! In 2016, Pearce joined as a founding member of ‘Still Loving It Lawyers Club®’ the 24th practice section of the Austin Bar, to encourage and inspire lawyers of every age to rejoice in their practice and continue lifelong service to others.

ell Friends, its tax time again. Unless your 2021 tax return is extended, for S corporations and other pass-through entities tax returns are due March 15, 2022; for individual, trust and C corporation returns the date this year is April 18, 2022; and nonprofits returns have a due date is May 16, 2022. While we predict the usual list of suspects will appear tearfully in our offices one day before the filing date with a shoe box full of receipts, and while we will endeavor to help them as we love our friends and have a hard time saying “No,” the following are intended not just for lawyers but for all those 30

AUSTINLAWYER | APRIL 2022

to their attorney who should ask the following of the IRS or other agent: “What is the scope of your inquiry, time, tax number and entities?” Then arrange with your client to have the requested records sent to your offices. Make the IRS or FBI agents comfortable; then leave them alone! Don’t offer amenities or try to chat it up. Just give them whatever they described, no more, no less. No conversation. I suffered casualty loss because of a fire, the Texas Blizzard, or for some other reason. That’s a great deduction to take, isn’t it?

that love and help their clients. There are many pointers that all through the years I feel could be followed with tremendous savings or avoidance of expenses, but these are the ones that continue to be presented to me repeatedly by clients who are well educated and smart, many lawyers and accountants: As a seasoned practitioner, don’t you worry about all these electronic tax services that are advertising everywhere from the internet to the Superbowl? While I try hard to never wish harm on anyone, when it comes to legal forms nonlawyers find on the internet, frankly, in time those forms prove to be a great source of business for people like me. Successful people eventually realize that one-size-fits-all forms are dangerous. It is hard for me not to say this to clients who have just realized how much more tax they paid than they needed to or some other legal mistake

or missed opportunity they experienced because they turned to forms rather than seasoned advisors. The good news is, once someone like me shows them the mistakes these forms and unlicensed advisors make, once they have an experience with a professional who is experienced, they never go back to those forms. They typically stay as clients for a lifetime. That’s the joyful result of those forms! The IRS asked to look at our books. What should I do? Never, ever, ever allow the IRS to come to your clients’ offices if you can avoid it. If the IRS or other law enforcement agents have a subpoena, they won’t call first. They will show up unannounced. There is likely nothing you can do to stop them right then even if you have many avenues later. When your client gets a call, they need to refer the IRS agent

This is exactly the kind of question unlicensed tax preparers answer in a way that often cause their clients to stumble and the IRS to initiate an audit. Not all deductions and losses are created equally. Whether a casualty-loss deduction is taken depends on many factors. This is a question that gets complicated in a hurry. The moment your client has anything out of the ordinary like a casualty loss occasioned by a catastrophic event for them personally or their business it is time to seek the counsel of a skilled tax. BONUS: For all our beloved nonprofit organizations, Don’t Get the 990 Blues! Retain the most skilled accountants or tax lawyers you can find to help you with preparation of 990’s no matter what type of nonprofit organization you think you are. Music video with tax preparers dancing AUSTIN LAWYER AL AL in the sunshine to follow!

LAW FIRM, P.C. FAMILY LAW

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court, Bias had failed to preserve error, and it rejected Bias’s contention that the United States Supreme Court had held in Class v. United States, 138 S. Ct. 798 (2018), that similar claims could be raised for the first time on appeal. The court observed that the holding in Class was limited to plea agreements and did not AUSTIN LAWYER AL AL alter the forfeiture doctrine.

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Austin Lawyer, April 2022

Articles inside

AYLA 2022 Board Election

The Safe Outdoor Dogs Act

Representing Transgender Clients

Tax Tips From a Seasoned Attorney

Kicking Off the 2022 Leadership Academy

VLS Returns to In-Person Legal Advice Clinics

Literary References

Estate Planning Is for All of Us

I’m Learning to Fly… Again

Living My Dream