Austin Lawyer, December 2021/January 2022 by Austin Bar Association

austinbar.org DEC. 2021/JAN. 2022 | VOLUME 30, NUMBER 10

20th Anniversary of Travis County Adoption Day Austin Bar Supports Forever Homes for Children

s part of National Adoption Month, the Austin Bar Association celebrated the 20th anniversary of Travis County Adoption Day on Nov. 4, 2021. As one of the proud sponsors of the event, the Austin Bar was excited to see 20 children adopted into 12 families. The event takes place each year with a focus of shining light on abused and neglected children needing forever homes. Many of these children have languished in foster care. Adoption Day is the culmination of gaining the family they’ve long desired. Though the event was virtual due to the pandemic, organizers honored the children in a most exciting way. The Austin Bar coordinated with the local and state agencies to ensure the children received the fanfare they deserved for the big day! Austin Adoption Day Committee Chair Denise Hyde worked behind the scenes to rally the troops as only she could, with energy for the big day. Hyde worked closely with Judge Aurora Martinez Jones, who presides over these cases, and other elected officials and their staff. The group diligently completed paperwork, aligned cases for the

As one of the proud sponsors of the event, the Austin Bar was excited to see 20 children adopted into 12 families. adoption process, and created an atmosphere of excitement for the families. Hyde’s legal expertise, excellent communication, and enthusiasm for child adoption made for an exceptional event. From a courtroom filled with stuffed animals to balloons and other fanfare, the effort met the purpose of putting children first. Judge Martinez Jones noted, “The 2021 Austin Adoption Day was an exciting time, especially with our hybrid press conference signaling a hopeful transition back to the courthouse. Most importantly, it was heartwarming and amazing to celebrate 20 children with their forever families on the 20th anniversary of Austin Adoption Day.” The Austin Bar's CLE, Sections, and Events Manager, Chase Brunson, worked along-

Adoption Day Chair Denise Hyde speaks as Judge Aurora Martinez Jones and a virtual audience listen.

side groups such as the Texas currently in the foster system Department of Family Protective awaiting reunion with permanent Services (DFPS), Court Appointfamilies and adoptive homes. ed Special Advocates (CASA), The Support from sponsors makes Heart Gallery of Central Texas, Adoption Day a success each year. and other volunteers. Brunson Sponsors provided the children says the day was truly a team efwith gift baskets to helpsupport fort and one he will never forget. the kids’ new lives. The families “Everyone behind the scenes receive special items, from a cares deeply about these families family photography session to and continues to support this engraved jewelry, estate planspecial day every single year. It’s ning consultations, and more. my first time participating and I’m Sponsors for this year’s event already thinking of how to capitalincluded the Austin Bar’s Family ize on what we’ve accomplished Law Section; Austin Chinese to make it even better next year,” American Network; Cook-Walden Brunson said. Funeral Homes & Cemeteries; Bikers Against Child Abuse Joseph Gagen, Attorney at Law; (BACA) also supported the event. Kendra Scott; Whitestone Fine BACA has long been involved Jewelry; Heart Gallery of Central with Adoption Day; members Texas; Holland & Knight; Amy's often appear in court to support Ice Cream; Foster Angels; Lyttle child-abuse victims testifying Law Firm, PLCC; Maples Jones, against abusers. PLCC; and Maureen Powers. The According to DFPS, 191 Austin Bar is grateful for the children were adopted in Travis sponsorships which help to make County during fiscal year 2020Adoption Day momentous for AUSTIN LAWYER AL AL 21. Another 2,902 children are everyone.

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CONTENTS

AUSTINLAWYER DEC. 2021/JAN. 2022 | VOLUME 30, NUMBER 10 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

CONNECTIONS

President's Column

Be Well

ONLINE austinbar.org

20th Anniversary of Travis County Adoption Day Austin Bar Supports Forever Homes for Children

10 Ask Your Friends: Are You an Austin Bar Member?

Austin Bar Board Members Outline Membership Strategy

22 Texas Governor Appoints Doty to 455th District Court 23 Continue to Make Connections in Our Legal Community

EMAIL sonta@austinbar.org

24 Entre Nous 19 Opening Statement 26 Practice Pointers

A 2022 New Year’s Resolution

IN EVERY ISSUE 11 Third Court of Appeals Civil Update

SOCIAL LIKE facebook.com/austinbar

12 Third Court of Appeals Criminal Update 13 Federal Civil Court Update 14 Criminal Court News 16 Briefs 20 AYLA

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It's a Wonderful Life

y most favorite holiday movie of all time is unequivocally one of the greatest works in cinematic history. The story is that of a conflicted businessman whose life is changed by a series of events culminating in a bountiful cavalcade of seasonal spirit that leaves the viewer with an ensuing feeling of fullness of heart. Beloved by many, if not all, that movie is, of course, Elf. Also moderately high on my list is the Frank Capra masterpiece It’s a Wonderful Life, which is based on the short story “The Greatest Gift” by Phillip Van Doren Stern … which is based on Charles Dickens’s A Christmas Carol. If you don’t know the story, a conflicted businessman’s life is changed by a series of events that culminate in a bountiful

… cavalcade … of … seasonal ... spirit .... Though in reality Dickens intended his novella to be a commentary on the social attitudes of his fellow countrymen toward poverty—a truly important topic—for the purpose of this article we’re going to stick with the theme of life-changing events. I do so because a few weeks ago I was asked an oddly specific question by a future lawyer: “What are the three most significant events that shaped your leadership journey?” Well, here they are!

EVENT #1: Mr. Speaker As I may or may not have disclosed previously and will undoubtedly pontificate upon again, I was painfully shy as a child. My introversion persists, but it was never more evident than the entirety of my first year at The University of Texas. Prior to attending the University, the largest class I had ever been a part of consisted of 76 students— the entire China Spring High School Class of 1995. A close second was a government class I took at McLennan Community College, with maybe 30 students. Suddenly, every class I was in

AUSTINLAWYER | DECEMBER 2021/JANUARY 2022

A few weeks ago I was asked an oddly specific question by a future lawyer: “What are the three most significant events that shaped your leadership journey?” had a minimum of 100 students, and those were the ones designed to be more “intimate.” By my third semester I hadn’t found my place in college and really hadn’t forged a path on which to build a future. That changed in the spring of 1999, when I enrolled in Dr. Janice May’s Legislative Simulation Course, which focused on the Texas House of Representatives. Dr. May’s class was one of those “fun” courses that most government majors wanted to take—as evidenced by the 200-student enrollment and an equally large wait list. In the class, each student was assigned a role, including members of the House, lobbyists, the press, administrative staff, and more. We were to research each position and engage as though we were that person. When I showed up to my second class, I learned that I

was assigned a role as a member of the House. During the same class, we, the members of the House, were expected to come together and elect a Speaker who would preside over the class for the balance of the semester. I still believe it was intended as a cruel joke, or at the very least an act of indifference, but my friends Alice May and Matt Gulledge decided at the last second that they would nominate me—and I won! Over the next four months, I learned how to speak to large groups without fear, negotiate, and really love the legislative process. Most importantly, the class laid the foundation for a career that I have really enjoyed. There is significantly more to this story, including an infamous interview, an internship, and a career in and around the Texas Legislature, but I reserve that for another day.

EVENT #2: Someone Unexpectedly Believed in Me In the spring of 2003, I was a first-year law student at St. Mary’s University School of Law and had joined the Student Bar Association as a Section Senator. My first election was an uncontested triumph for the ages! Quite frankly, I loved SBA! It gave me the opportunity to meet significantly more students and alumni than I would have otherwise and to participate in some unique opportunities. It certainly helped a mediocre law student get the most out of the law school experience as possible. As elections for the 200304 officers and senators were

approaching, I decided to run for senator again and began to think about which of my classmates would be best equipped to lead us as executives. I immediately decided on my friend Chris Gee to run for vice president (a position traditionally held by an incoming 2L). He was well-liked, smart, and seemed to take his duties as a 1L Class Senator seriously. I thought his leadership would help make the SBA better and my own experience more enjoyable. When I approached Chris about running for vice president, he politely declined and insisted that I run instead. My introverted nature would not allow me to believe he was serious. He then

Memories from 2006: David Courreges, Judge Karin Crump and Professor Norma V. Cantu, current Chair of the U.S. Commission on Civil Rights.

thoughtfully laid out the reasons why I should run, which included the phrase, “I believe in you.” In retrospect, that was a little overthe-top for a law school student council election, but it that was the first time anyone outside of my mother, girlfriend (now wife), or a teacher had ever told me such a thing. It still means a lot. Thank you, Chris Gee! As a side note, the election gave my wife Erin the opportunity to devise the most ingenious campaign slogan of all time: “Be Courageous, Vote Courreges.” The following year she also came up with “Once Courreges, always Courageous! Vote Courreges!”

EVENT #3: That One Person in Austin In 2006, I was back in Austin. I had recently passed the bar exam and was working for a second time at the Texas House of Representatives. Erin and I had just gotten married, and we decided that it was time for me to leave what I had grown comfortable with and try to find a job outside of the pink dome. My first call was to Al Hartman, the associate dean of law alumni relations at St. Mary’s University. My question was simple:

“Can you tell me the three people I need to meet in Austin?” He gave me one name: Karin Crump. The next week I found myself having lunch with the nowJudge Crump who was at that time the president-elect of the Texas Young Lawyers Association (TYLA). The topic of looking for new employment never actually came up. Rather, Judge Crump spent most of the hour telling me about TYLA and a new project she was working on called “They Had a Dream Too.” Within a month, I found myself presenting “THADT” to the entire senior class at Bowie High School along with Justice Dale Wainwright, and again to the seniors of Travis High School with Professor Norma Cantu. I was hooked! Over the next few months, Judge Crump would introduce me to countless people and invite me to participate in multiple public service events. One of the first individuals she introduced me to was Austin Young Lawyers Association (AYLA) President Shannon Meroney, who would invite me to serve as the Legislative Liaison for the AYLA board of directors. I have remained a member of the AYLA or Austin Bar boards of directors in some capacity ever since. There you have it! The three most Walter Hobbs/George Bailey/ Ebenezer Scrooge (the good Ebenezer, not the pre-revelation Ebenezer) Hallmark Channel moments of my personal leadership journey. As you can see, these are true moments in time that none of the parties I’ve mentioned could have possibly have known would have such a profound impact on my life, both professionally and personally. Heck! How could they? I didn’t know either! They were simple words and minimal effort, but each word and act has meant the world to me. With that … Merry Christmas, movie house! Merry Christmas, Emporium! Merry Christmas you wonderful old Building and Loan! Merry Christmas andAUSTIN Happy Holidays to LAWYER L AL each and every one ofAyou!

DECEMBER 2021/JANUARY 2022 | AUSTINLAWYER

BE WELL

Choose to Do Something, Not Everything BY MEAGAN M. JONES

Meagan M. Jones is a partner at Maples Jones, PLLC. She practices family law.

s COVID restrictions have lessened, I, like many others, have returned to the in-person world, attending events and conferences without the aid of Zoom. Speaking with colleagues, I have noticed that conversation often turns to mental health and how we are all “surviving.” Our collective focus on discussing our current states of mental health and well-being made me realize two things: (1) After so many months of social isolation, people are more willing to talk about the sometimes-taboo topic of mental health; and (2) As the holidays rapidly approach and people’s calendars fill up with family, vacations, and holiday parties, it is important to not forget to take care of ourselves. With the dialogue now open, self-care and mental wellness themes have erupted on social media. There have never been more resources available for exploring the topic, but setting realistic goals can be difficult when you learn that self-care truly means something different to everybody. Additionally, self-care does not always look a certain, one-size-fits-all way. 8

“Choice fatigue” is a concept that suggests our brain is only so capable and that our ability to make decisions gets worse after being presented with too many options. This paradoxical concept made me pause for a moment and consider how many decisions we all contemplate every single day. Not only as people, but also especially as attorneys, the potential impact these choices can have on our well-being and our clients’ well-being can potentially be profound. In just a few quick minutes researching self-care, I discovered so much content that it quickly became daunting. The obvious lesson was that the important choice is to do something, not everything. If you were to ask a group of people what they do for self-care, you are likely to get as many answers as the number of people you ask. Studies show that people are more likely to not decide at all if they are suffering from choice fatigue. So, it is important to not let yourself become so bogged down with the barrage of “wellness approaches” that you choose to do nothing at all. Don’t try to do yoga, cooking, hiking, healthy food, mindfulness, journaling, regular exercise, maintaining friendships, and regular sleep… choose to do something, not everything. Try one thing or many things until you find the thing that works for you. If you aren’t enjoying an activity, continue trying out other approaches. Plugging along, practicing a self-care routine that either you don’t enjoy or isn’t producing results, can be just as detrimental as ignoring self-care altogether. I notice that when I start a routine and fall off briefly I feel like I have to start all over, but the stakes are really not that high. Instead of beating ourselves up, we just need to choose to do something again.

AUSTINLAWYER | DECEMBER 2021/JANUARY 2022

We should all remember to take the time to worry about our own mental health and indulge in self-care as part of our regular routine. Give yourself uninterrupted time: • Focus on your next small goal; • Catch up with a friend; • Indulge in a favorite activity; or • Spend time outside. After enduring COVID, we have made strides in our ability to connect authentically about real mental health issues. In order to capitalize on this progress, we would do well to all remember to take the time to worry about our own mental health and indulge in self-care as part of our regular routine. I would suggest being flexible in your thinking

around taking time for yourself and letting go of expectations. Make it a point to throw away the word should. Throughout the pandemic, we have learned to allow a lot of grace for each other, our clients, and the collective community, and we must remember to do the same for ourselves. There is nothing we should be doing this year, aside from enjoying the holidays and experiencing, appreciating, and sharing the simple pleasure and joy from our AUSTIN LAWYER AL AL experiences.

Ask Your Friends: Are You an Austin Bar Member? Austin Bar Board Members Outline Membership Strategy

he Austin Bar Association’s most recent monthly board meeting took place on Oct. 26, 2021. The top priority: Membership! Leslie Dippel, Membership Committee chair, laid out plans for attracting new members, engaging current ones, and reclaiming others who have been inactive. Dippel says the Austin Bar plans to do the following: • Attract government attorneys (annual dues lowered to $95). • Work with managing partners to gain firms’ membership in the 100 Club. • Conduct an active Membership Appreciation Week (Jan. 10 -14, 2022). • Focus on reclaiming members. At the meeting, Dippel reported that the Austin Bar had over 3,400 members for the 2021 membership year. Dues for current members are due on Jan.

Austin Bar Board Members: (top row) Adam Schramek, Justice Chari Kelly, Jessica McGlynn, Amanda Arriaga, Todd Headden , Craig Moore, Maitreya Tomlinson, Blair Leake, Tristan Dau, and President David Courreges. (bottom row) Sherine Thomas, Ciara Parks, Kennon Wooten, Mary Ann Espiritu, Leslie Dippel, Leslie Boykin, Laura Sharp

1 of the new year, with membership being dropped if dues are not paid by Jan. 31, 2022. Dippel concluded by encouraging members to reach out

to their colleagues and other nonmembers to discuss the benefits of membership AUSTIN LAWYER with L AL the AustinABar.

Visit the new Austin Bar Association website at austinbar.org to learn about all the free CLE and member events in which you can participate!

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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 October 2021. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of Nov. 2, 2021.

MANDAMUS: COURT GRANTS MANDAMUS RELIEF FOR SANCTION IMPOSED WITHOUT NOTICE. In re Champagne, No. 03-2100426-CV (Tex. App.—Austin Oct. 27, 2021, orig. proceeding) (mem. op.). In a SAPCR modification proceeding, mother sought interim attorney fees. During the hearing, the trial court indicated that an award of fees as a sanction based on father’s litigation conduct was more defensible than an award of interim fees. The trial court’s temporary order awarded almost $5,000 in fees as a sanction against father. According to the court of appeals, a trial court’s discretion to sanction under Rule 13, CPRC Chapter 10, or its inherent power is limited: A party against whom sanctions are sought must have notice and an opportunity to respond. Mother’s request for interim fees did not seek fees as a sanction. Father’s only notice was during the hearing. The court held that trial

court abused its discretion and granted mandamus relief. MANDAMUS: COURT GRANTS MANDAMUS RELIEF FROM A DISCOVERY-SANCTION ORDER. In re On Track Experience, LLC, No. 03-21-00304-CV (Tex. App.—Austin Oct. 20, 2021, orig. proceeding) (mem. op.). Plaintiff sued following injuries sustained at a racetrack. Before entering the track, plaintiff signed a waiver that left blank the event, location, and date. After the race, relator filled in the blanks. The trial court concluded that relator spoliated the waiver by filling in the blanks and, as a sanction, excluded the waiver from use. The court of appeals concluded that striking the waiver was excessive because the prejudice to plaintiff was limited: The scope of the spoliating conduct was known, and the unaltered portions of the waiver were still available to the parties. Further, the court concluded that the trial court failed to consider lesser sanctions. Relator had no adequate remedy by appeal because the exclusion of the waiver prevented relator from asserting a case-determinative defense. The court granted mandamus relief. SUPERSEDEAS: COURT REVERSES ORDER RELEASING BOND TO APPELLEES.

Adams v. Godhania, No. 03-2000115-CV (Tex. App.—Austin Oct. 20, 2021, no pet. h.). After appellees prevailed on appeal, the trial court ordered the full amount of the supersedeas bond released to them. Appellants contended that appellees were not entitled to the bond because they did not prove damage incurred during the appeal. The court of appeals observed that a supersedeas bond is not an unconditional agreement to pay, but imposes conditional liability for harm suffered during appeal. Further, the court noted that the calculation of a supersedeas bond is different from the calculation of damages resulting from an appeal. When, as here, the bond covers rent accruing during an appeal, the judgment holder must prove the actual amount after the appeal is completed. The court concluded the trial court abused its discretion in releasing the bond without hearing evidence of damage actually incurred during the appeal. The court reversed and remanded.

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.

a condo complex. Homeowners contended that the invoices were too heavily redacted to determine the services performed. According to the court of appeals, the invoices redacted topics researched, the subject of attorney conferences, and client communications. The court held ATTORNEY FEES: that the redactions did not renCOURT AFFIRMS FEE der the evidence insufficient to AWARD DESPITE support the fee award. Further, REDACTED INVOICES. the court concluded that even if Green v. Villas on Town Lake the redactions were too extensive Owners Assoc., Inc., No. 03-20to support the judgment, the 00375-CV (Tex. App.—Austin Oct. trial court could have relied on 22, 2021, no pet. h.) (mem. op.). the attorney’s testimony about Homeowners challenged attorney attorney fees. The court modified fees awarded to owners associathe appellate fee award and AUSTIN LAWYER tion in litigation over the sale of AL AL affirmed.

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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 criminal opinions issued by the Third Court of Appeals from April 2021. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Nov. 1, 2021.

EVIDENTIARY SUFFICIENCY – CATTLE THEFT: Evidence was sufficient to prove that defendant intended to steal cows. Thompson v. State, No. 03-2000080-CR (Tex. App.—Austin Apr. 15, 2021, pet. ref’d). Thompson woke up one morning to find three black cows standing outside his garage. Instead of

attempting to locate the owner of the cows, Thompson kept them on his property and later transported them to another property that he owned. After the cows were found, Thompson was charged with and convicted of cattle theft. He raised several issues on appeal, including the sufficiency of the evidence. Thompson argued that the evidence was insufficient to prove that he intended to steal the cows. Instead, he claimed that he intended to keep the cows on his property until the owner found them, which is what a former sheriff’s deputy told him to do. The court explained that Thompson’s intent to steal could be inferred from his words and actions: not reporting the cows to law enforcement; not attempting to locate the owner of the cows, even though they were branded and thus had an ascertainable owner; not asking his neighbors if the cows belonged to them; constructing a pen on his property for the cows and keeping them there for approximately two weeks; transporting the cows from where he had found them to another location approximately one mile down the road, presumably farther removed from their place of origin; asking a friend not to “say anything about the beef to anyone” because “[i]t looks tasty” (which he claimed was a joke); telling his friend that he wanted to “butcher” the cows and “had been watching videos of how to butcher cows on YouTube,” and

asking his friend if he would be willing to help him butcher the cows; and, despite knowing that the cows did not belong to him, inquiring as to whether he would be able to “keep the calf” of one of the cows because the calf had been born on his property. The court concluded that this evidence was sufficient to support Thompson’s conviction. DESTRUCTION OF REPORTER’S RECORD – DEFENDANT’S FAULT: Court reporter’s destruction of voir dire record 15 years after trial did not entitle defendant to new trial. Castro v. State, No. 03-19-00286CR (Tex. App.—Austin Apr. 30, 2021, pet. ref’d) (mem. op., not designated for publication). Castro was tried in 2002 for sex offenses and absconded in the middle of trial. He was convicted and sentenced in absentia. Many years later, Castro was arrested in Oregon and extradited to Texas, and in 2019, his sentence was pronounced in his presence. Castro filed a motion for new trial, which the district court denied. Castro argued in his motion and again on appeal that the missing transcript of the voir dire proceedings, which the court reporter had destroyed sometime after May 2017, entitled him to a new trial. The court rejected this contention. Texas Rule of Appellate Procedure 34.6 provides that an appellant is entitled to a new

trial if, among other requirements, “without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed.” The appellate court concluded that even though the court reporter failed to file the untranscribed notes or the original recording of the proceeding with the trial court clerk, as required by Texas Rule of Appellate Procedure 13.6, Castro bore at least some fault for the destruction of the record. Castro had absconded from his trial in 2002, which caused a delay in both the oral pronouncement of his sentence and Castro’s appeal from that sentence. Castro, however, contended that he could not appeal his conviction before his sentencing and that because Texas Rule of Appellate Procedure 20.2 allows an appellant to file a motion requesting preparation of the appellate record without charge “within the time for perfecting an appeal,” the rule “prevented” him from requesting a no-cost record until after he had been sentenced. The court disagreed, observing that Castro could have filed a premature notice of appeal at any point prior to his sentence, which could have resulted in the preservation of the record. Because Castro was at least partially at fault for the destruction of the record, the district court did not abuse its discretion in denying his LAWYER motion AUSTIN AL AL for new trial on that ground.

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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.

> SECURITIES ENFORCEMENT: Requirements of Liu v. SEC, 140 S.Ct. 1936 (2020) are satisfied if in SEC civil enforcement actions, disgorgement award is limited to defendants’ net profits and will be awarded by SEC to identified victims under district court supervision. SEC v. Blackburn, 15 F.4th 676 (5th Cir. 2021). The Securities and Exchange Commission (SEC) filed a civil enforcement action against three defendants and others for selling unregistered securities and misleading investors in the operation of a penny stock company. On summary judgment, the district court found the defendants liable on several of the SEC’s claims. Among other remedies, the district court ordered disgorgement of the defendants’ fraud proceeds. The disgorgement order initially required that the disgorged funds go into a Treasury fund that helps pay whistleblowers reporting securities fraud and funds the activities of the Inspector General. The defendants appealed. While their appeal was pending, the Supreme Court decided Liu v. SEC, 140 S.Ct. 1936 (2020), in which it held that district courts may award disgorgement as a remedy in SEC enforcement actions only if the disgorgement is (1) limited to a defendant’s net profits from the violation; and (2) awarded for victims of the defendant’s violation. In light of Liu, the SEC requested a limited remand, which the Fifth Circuit granted. On remand, the district court modified its disgorgement order. Rather than requiring the disgorged funds to be paid into the Treasury fund, the district court

Although police officers can invoke qualified immunity by relying on statutes that authorize their conduct, they may not do so when the statute is obviously unconstitutional. ordered that the funds be paid initially to the SEC, which will then disburse the funds directly to victims after district court approval. The defendants appealed again, arguing that the district court’s disgorgement procedure still ran afoul of Liu’s requirement that disgorgement funds “be awarded for victims.” The Fifth Circuit disagreed, holding that “[t]he district court’s order—requiring disbursements to already-identified victims with court supervision to ensure compliance with that edict—easily satisfies Liu.” QUALIFIED IMMUNITY: Doctrine of qualified immunity does not permit government officials to invoke patently unconstitutional statutes to show that their actions were objectively reasonable. Villarreal v. City of Laredo, Tex., No. 20-40359, 2021 WL 5049281 (5th Cir. Nov. 1, 2021). In April and May 2017, Villarreal, a journalist in Laredo, Texas, published two separate stories containing facts that Villarreal had confirmed with a Laredo Police Department (LPD) officer. Six months later, two arrest warrants were issued for Villarreal for violating Texas Penal Code section 39.06(c), which prohibits soliciting or receiving from a public servant nonpublic information that the public servant has access to by means of their office or employment. Local officials had never brought a prosecution under that provision in the 27year history of the statute. After Villarreal turned herself in, LPD officers took pictures of Villarreal during the booking process and mocked and laughed at her. She

was then detained in the Webb County Jail. Villarreal filed a petition for writ of habeas corpus in the Webb County district court. In March 2018, the court granted her petition and ruled that section 39.06 was unconstitutionally vague. The government did not appeal. Villarreal subsequently brought suit under 42 U.S.C. § 1983 against various local officials, alleging a pattern of harassment and retaliation that culminated in her arrest and a violation of her First, Fourth, and Fourteenth Amendment rights. The officials moved to dismiss under Rule 12(b)(6) based on, among other grounds, qualified immunity. The district court granted the motion, dismissing Villarreal’s First and Fourth Amendment claims based on qualified immunity and her other claims for failure to state a claim. Villarreal appealed. The Fifth Circuit reversed the district court’s qualified-immunity dismissals. To defeat qualified immunity at the motion-to-dismiss stage, a plaintiff must allege that the officials violated the plaintiff’s constitutional rights and that their actions were objectively unreasonable in light of clearly established law. The crucial question is whether a reasonable official would understand that what he or she is doing violates a constitutional right. The officials argued that their arrest of Villarreal was objectively reasonable because they were simply enforcing a statute. The Fifth Circuit disagreed. Joining several other circuits, the court held that although police officers can invoke qualified immunity by relying on statutes that authorize their conduct, they may not do

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

so when the statute is obviously unconstitutional. And section 39.06(c), the court concluded, is obviously unconstitutional because any reasonable police officer should know that locking up a journalist for asking questions violates the First Amendment. And any reasonable officer would therefore understand that an arrest warrant issued based on a journalist’s asking questions lacks probableAUSTIN cause in LAWYER violation AL AL of the Fourth Amendment.

DECEMBER 2021/JANUARY 2022 | AUSTINLAWYER

CRIMINAL COURT NEWS

Fifth Circuit: Got 10 Seconds? That’s Sufficient Time for Reasonable Suspicion 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 a somewhat remarkable opinion, in July 2021, the Fifth Circuit Court of Appeals held that a defendant who sat in a parked car for 10-15 seconds after pulling into a parking spot was subject to seizure and questioning based solely on his delay in getting out of the car.1 The case involved a “highcrime area” in Jackson, Mi., to which the Jackson Police Department had assigned a team of officers to patrol, looking for suspicious activity. The officers observed a Cadillac pull into the parking lot of a convenience store and park in a spot far from the entrance to the store. The Cadillac also parked facing a brick wall, not the window in front of the store. The officers decided to conduct a “field interview,” which involved pulling five or six patrol cars behind and around the Cadillac, preventing the car from leaving. When officers approached the vehicle, the passenger window opened, and they could smell marijuana smoke. The passenger threw an object in his mouth, and the police ordered both men to exit 14

the Cadillac. Officers observed a pistol in the driver’s seat where Flowers had been sitting.2 Flowers, a convicted felon, was charged with being a felon in possession of a firearm. Flowers filed a motion to suppress the evidence of the pistol, claiming that the basis for the encounter was a seizure that violated the Fourth Amendment. The trial court denied Flowers’ motion to suppress, and a jury then convicted him of possessing the weapon.3 The appeals court, in affirming the conviction, noted that the Fourth Amendment must be “‘justified at its inception.’”4 The Fourth Amendment prohibits “unreasonable searches and seizures.”5 A temporary detention of a person is considered a seizure and may be only undertaken if an officer “has reasonable suspicion to believe that a crime has occurred or is in the offing.”6 At the point the officers smelled the odor of marijuana, they certainly had reasonable suspicion to detain the occupants of the vehicle to investigate further. The question was whether the action of pulling the multiple police vehicles around the Cadillac, preventing the car from leaving, was reasonable given the information the officers had at that time.7 The Court addressed whether pulling the numerous police vehicles around the parked car could be considered a seizure at all. The majority noted that although a policer officer testified that the occupants of the vehicle were “free to leave” at the time the numerous police vehicles surrounded the Cadillac, the investigation of the car was “benign” until the officers smelled marijuana.8 The Court, in affirming the seizure as justified, noted the encounter occurred in a part of town in which many crimes

AUSTINLAWYER | DECEMBER 2021/JANUARY 2022

had been reported, was at night, and that the stopping officer “was no novice[,]… possessed an undergraduate degree in justice administration and a master’s degree in criminology and had ten years of law enforcement experience.”9 The Court held that the numerous officers pulled around Flowers’s car “were either abusive or threatening,” and the smell of marijuana gave the police officers probable cause to seize Flowers. The conviction of firearm possession was affirmed. In dissenting in part, Judge Elrod noted that in the seminal case involving reasonable suspicion, Terry v. Ohio,10 the United States Supreme Court held that officers watching two men pacing around in front of a store for 10-12 minutes developed reasonable suspicion to stop and question the men. “How far we have come[,]” Judge Elrod noted, pointing out that the majority opinion had just cut the required time for observation down to 10-15 seconds. The dissent further noted that the numerous police vehicles trapped Flowers from exiting a parking lot in an “unsavory part of town” and that with the majority’s holding, “our law “comes dangerously close to

declaring that persons in ‘bad parts of town’ enjoy second-class status in regard to the Fourth AUSTIN LAWYER AL 11 AL Amendment.’” Footnotes 1. Flowers v. United States, 6 F.4th 651 (5th Cir. 2021). Judge Edith Jones wrote the opinion for the majority. 2. Id. at 654-55. 3. Id. 4. Id. at 655 (quoting United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014) and citing Terry v. Ohio, 392 U.S. 1 (1968)). 5. U.S. Const. amend. IV. 6. Id. at 655 (citing Terry v. Ohio, 392 U.S. 1 (1968)). 7. Id. at 656. 8. Id. at 657-58. 9. Id. at 656. 10. 392 US 1 (1968). 11. Flowers, 6 F.4th at 659 (quoting United States v. Rideau, 969 F.2d 1672, 1577 (5th Cir. 1992) (Elrod, J. concurring in part and dissenting in part).

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BRIEFS NEW MEMBERS Sara Baumgardner Katherine Brittingham Arnoldo Cantu Heather Coffee Wyatt Conoly Taylor Denison Bryan Dotson

(from left) Hicks, McComb, and Wilson

Benjamin Dunn Loren Elkins Victoria Filoso Keaton Frieberg Carlotta Garza-Kilcullen Jennifer Georg Matthew Greider Michael Guajardo Greg Hart Megan Hughes Melanie Ibarra-Herrera Jacy Johnson Harry Jung Honest Kapic Paula Knippa Puneet Kohli Danielle Lam Kayna Levy Ginny Lewis Ford Robert Love Jakub Madej Nicholas martin Michelle Miciotto James Morton William Morton

MOVING ON UP

Garrett Hicks joins Munsch Hardt Kopf & Harr’s construction practice group in Austin. Hicks is a graduate of Baylor Law School and brings years of experience in commercial and construction disputes. Munsch Hardt continues its growth in the Austin legal market with the addition of five new associates over the past 12 months. AnneMarie McComb is now an associate of The Snell Law Firm, PLLC. McComb will focus on litigation related to real estate, construction, shareholder or partner disputes, and business torts. Matthew Greider joins the law firm of Barnett & Garcia

Jami Nance-Hale

NEW DIGS

PLLC. Greider will join the firm’s statewide commercial debt collection practice. Greider is a graduate of St. Mary's University School of Law, where he was involved in the school's civil justice clinic. Sherri Wilson joins Wittliff | Cutter PLLC as senior counsel. Wilson is a registered patent attorney and focuses her practice on patent, trademark, copyright, and trade-secret law with an emphasis on due diligence, litigation, prosecution, and licensing of intellectual property. Prior to practicing law, Wilson worked as an electrical design engineer in the telecommunications and defense industries.

Cain & Skarnulis PLLC is excited to announce the move of their offices from 400 West 15th Street, Suite 900, Austin, Texas 78701 to 303 Colorado Street, Suite 2850, Austin, Texas 78701. The firm completed its move on Nov. 22, 2021. Phone and fax numbers remain the same. Berlandi Nussbaum & Reitzas LLP of New York, NY and Brophy & Devaney Law, PLLC are pleased to announce their affiliation beginning Nov. 1, 2021. While each law firm will remain separate for now, they will combine resources to cement a nationwide footprint and further strengthen their litigation and business practice groups.

John Nolan Lauryn Robinson Christina Rosendahl Hannah Schiffman Allison Schwach Jasleen Shokar Wesley Williams Jennifer Zellner

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

AUSTINLAWYER | DECEMBER 2021/JANUARY 2022

Announcements should include all pertinent information including firm name, address, and contact numbers. Send submissions along with a high-resolution head shot to Austin Lawyer Managing Editor Sonta Henderon at sonta@austinbar.org.

L A W

F I R M

Bollier Ciccone LLP has moved to Westlake after outgrowing its downtown Austin office.

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MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS

MEMBERSHIP WEEK

Jan. 10-14, 2022 at Hilgers House We’re showing appreciation for our members and looking forward to meeting new ones! From Tacos and Tech to Wellness and FriYay, join us for fun-ﬁlled days of food and entertainment. Stay tuned for more details. 2016-PRESENT

AUSTINLAWYER | DECEMBER 2021/JANUARY 2022

OPENING STATEMENT

Email Memos, Part 3 Using and Citing Authority in E-memos BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

his is part three of a three-part series on e-memos, reporting on Professor Brad Desnoyer’s article E-Memos 2.0: An Empirical Study of How Attorneys Write.1 Prof. Desnoyer gathered 113 lawyers’ opinions on four sample email memos that used different approaches to organization, analysis, tone, and content. The memos ranged in length from 172 to 457 words, and the responding attorneys were in private practice (large, medium, and small firms) and governmental, judicial, corporate, and other jobs; they ranged in age from under 30 to over 60.2 This column summarizes the final four points from Professor Desnoyer’s research. 1. APPLICATIONS ARE NECESSARY. Last month’s column reported Prof. Desnoyer’s conclusion that “analytical depth matters.” This recommendation goes along with that, and here’s what it means: It’s not enough to report the relevant legal doctrines and standards; e-memo writers should apply those standards to the facts of the given case. Granted, there are times when the assigning lawyer’s request is simply, “Tell me what the law is.” But outside those assignments, reporting on the law alone is insufficient. Take the next step and apply it. 2. E-MEMOS CALL FOR EXPLANATORY PARENTHETICALS. In a traditional legal memorandum or in a trial or appellate brief, heavy use of explanatory parentheticals isn’t recommended. For one thing, they can give off the appearance of scholarly writing—seminar papers and

law-review articles. For another, they’re often used for less-important cases or for merely bolstering a point. In fact, as I said in this column in 2016, “to some degree an explanatory parenthetical sends the message, ‘Don’t read me. I’m not important.’” But those reactions are nearly turned upside down in e-memos. Forty-two percent of the respondents reported that explanatory parentheticals should be used frequently or very frequently.3 It only makes sense. The reader wants to understand the precedents but doesn’t have time for full case illustrations. So, mastering the art of the thorough but concise explanatory parenthetical is worth the effort in e-memos.

comments on the citations at all.4 And the two samples with poor citations—missing and incomplete—received low scores and some negative comments: “Sample [x] was clearly the weakest memo, as it had very few citations (and very few in-text citations) ….” “[T]he [author] had not provided pinpoint cites in the decisions, making it more time-consuming for the [reader] to assess the conclusion.”5 So, citations aren’t important unless you mess them up? Or perfect citation form doesn’t matter, but sloppy citation form does? Advice? Include proper, full citations in the e-memo until your supervisor tells you to stop.

3. PREFERENCES TOWARDS FORMAL CITATIONS ARE COMPLICATED. A mere 17% of the respondents said formal Bluebook citations are “important,” and only four percent said “very important.” Meanwhile, 70% said formal citations are “somewhat important” or “not important.” Yet the e-memo samples with perfect citation form elicited no criticisms or

4. TRADITIONAL MEMOS AREN’T DEAD. Although I risk accusations of job preservation, I’m pleased to report that the traditional memo— which I still make my students write—lives on in the real world. Only 17% of Prof. Desnoyer’s respondents reported writing no traditional memos, and 54% reported writing five per year. Ten percent—a small number, I

grant—write 30 or more traditional memos per year.6 Two other points: First, mastering the full, traditional memo is a key building block in understanding legal analysis and lays a solid foundation for writing shorter documents—like e-memos. Second, anecdotally, employers who hire a lot of lawyers and who must sift and sort numerous job applications, report that they expectAUSTIN to see traditional memos LAWYER AL AL as writing samples. Footnotes 1. Brad Desnoyer, E-Memos 2.0: An Empirical Study of How Attorneys Write, 25 J. Leg. Writing Inst. 213 (2021). 2. Id. at 229-236. 3. Id. at 254. 4. Id. at 255. 5. Id. at 256 n. 187. 6. Id. at 262-63.

DECEMBER 2021/JANUARY 2022 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Member Spotlight: David Holmes AYLA: Tell us a little bit about yourself and your law practice. Holmes: I am an associate at Walsh Gallegos Trevino Kyle & Robinson P.C. where I practice education law. My practice is primarily a combination of employment law, government access/ transparency, First Amendment law and litigation/administrative proceedings, plus a healthy does of “a kid just did this, what do we do next” calls.

[Participating in the AYLA/Austin Bar Leadership Academy] was an incredible opportunity to build relationships with other young attorneys in the area, meet distinguished members of our legal community, trade practice tips and other thoughts on the profession, and work on rewarding fundraising initiatives. AYLA: How long have you been involved in AYLA and what has been your best AYLA experience so far? Holmes: I have been involved with AYLA since graduating law school in 2018. I really enjoy the AYLA Docket Calls (and have really missed them in the pandemic!), but my favorite AYLA experience was participating in the AYLA/ Austin Bar Leadership Academy. It was an incredible opportunity to build relationships with other young attorneys in the area, meet distinguished members of our legal community, trade practice tips and other thoughts on the profession, and work on rewarding fundraising initiatives.

AYLA: What was your childhood dream job? Holmes: My dream job was to make the NBA—but like, not as a star. I wanted to be the kind of guy to average 19 points per game, be discussed as “perpetually underrated” and “a real hooper,” and never get recognized in the grocery store. AYLA: What’s your favorite moment of your career so far? Holmes: I represented a couple in a landlord-tenant dispute where we contended the landlord wrongfully withheld their security deposit. I handled the trial completely on my own and

the judge found in my clients’ favor and granted treble damages. They were so excited and grateful, and I felt amazing going home that day. AYLA: What are some of the things you enjoy most about living in Austin?

There is always something happening, always something to do—a great new restaurant to try, a random pop-up shop to check out, a new artist to grab tickets to. At the same time, the pace and mood of Austin is such that it’s also always the perfect place to just chill out and relax. AYLA: What’s your best piece of advice for fellow young attorneys? Holmes: Be willing to stretch your comfort zone, whether that means trying a new practice area, going to an event you otherwise might skip, or volunteering to help on a project or issue in the community you otherwise might let pass by. You never know where opportunities are going to come forLAWYER growth, as an attorney AUSTIN AL AL and person.

AYLA Judicial Wine Tasting

YLA hosted a fantased and learned about each wine tic, sold-out Judicial and conversed with the judges in Wine Tasting event a purposefully small, uncrowdon Thursday, Oct. ed setting. After the rotations 28 at the Hilgers House. Judge were finished, the participants Elisabeth Earle, Justice Chari mingled amongst themselves and Kelly, Judge Mark Lane, and the four judges while enjoying Judge Jessica Mangrum served their choice of wine, charcuterie as the four judicial presenters for board, and dessert. A special the event. Each judge presided thanks goes out to the judges, over one of four wine-tasting Debbie Kelly; the event sponsor, rooms to introduce the particWright & Greenhill, P.C.; and the ipants to a different vintage of Texas Young Lawyers Association wine. The participants rotated be- AUSTIN for the grant that made this event LAWYER AL AL tween the rooms, where they tastpossible. 20

AUSTINLAWYER | DECEMBER 2021/JANUARY 2022

(from left) Erin Leake, Stephen Barron, Blair Leake, Judge Elisabeth Earle, and Brian Aslin.

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Plans 12th Annual MLK Day of Service

n honor of Dr. Martin Luther King, Jr., the Austin Young Lawyers Association will coordinate its 12th annual MLK Day of Service project on MLK Day, Monday, Jan. 17, 2022. This local project is modeled after the national Martin Luther King Day of Service, which is intended to transform Dr. King’s life and teachings into community service that helps solve social problems. There will be multiple organizations for volunteers to choose from once the signup

The 2022 MLK Day of Service will be a combination of in-person volunteer opportunities and donation drop-offs at the Austin Bar Association Hilgers House. link becomes available in early January. Members of Austin’s legal community can sign up for one or more of the events being offered. Friends and family are encouraged to volunteer as well. The 2022 MLK Day of Service will be a combination of in-person volunteer opportunities and

donation drop-offs at the Austin Bar Association Hilgers House. The events will be scheduled in consideration of local MLK Day community events, and we plan to follow the local guidelines for health and safety. The goal is to serve the community together safely.

JAN 17 2022 AYLA MLK DAY OF SERVICE Join us! Email: debbie@austinbar.org

If you would like to join the committee to help plan or organize a service event, or have questions about the signup opportunities, please email AUSTIN LAWYER AL AL debbie@austinbar.org.

Austin, Houston, Dallas, Fort Worth Join Forces for Virtually Legal

ecause a live musical was not held in 2020, and potentially not possible in 2021, Austin, Houston, Dallas, and Fort Worth joined forces to hold the first ever statewide virtual lawyer musical: Virtually Legal. This one-hour virtual show will feature the best of what the cities typically perform for their local audiences. Virtually Legal will feature performances from: Bar & Grill

(presented by the Austin Young Lawyers Association), Bar None (presented by the Dallas Bar Association), Night Court, and the Tortfeasors of Tarrant County. Virtually Legal, approved for one hour of ethics CLE, will premiere on Dec. 9, 2021 and remain streaming until Jan. 1, 2022. The ticket price is $20, and attendees will have the option to donate to each of the four charitable organizations.

Visit austinbar.muradbid.com to purchase your tickets. Contact

debbie@austinbar.org forLAWYER more AUSTIN AL AL information on sponsorship.

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UPCOMING EVENTS DEC. 9, 2021 - JAN. 1, 2022 Virtually Legal Virtual Musical Tickets: $20 Purchase your tickets at austinbar.muradbid.com. JAN. 17, 2022 AYLA MLK Day of Service Various Locations Visit ayla.org to learn more and sign up.

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LIVE STREAM RUNS UNTIL JANUARY 1st APPROVED FOR 1 HOUR MCLE CREDIT DECEMBER 2021/JANUARY 2022 | AUSTINLAWYER

Texas Governor Appoints Doty to 455th District Court

overnor Greg Abbott has appointed Cleve Doty as judge of the 455th Judicial District Court in Travis County for a term set to expire on Dec. 31, 2022, or until his successor shall be duly elected and qualified. Judge Doty replaces Dustin

Howell to fill a vacancy on the recently created 455th District Court, which will handle civil and family law cases. A resident of Austin, Doty recently served as an assistant attorney general for the Office of the Attorney General. Previously, he served as counsel for the

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.

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.

First Liberty Institute and as an associate for Baker Botts, LLP. He is a member of the State Bar of Texas and the Federalist Society. He is chairman of the Texas Academy of Mathematics & Science (TAMS) Advisory Board, former chairman of the TAMS Alumni Association, and former member of the TAMS Selection Committee. Additionally, he is a member of Southwest Bible Church and a former board member of the Plano Citizens’ Coalition. Doty received a Bachelor of Arts in Political Science from Yale University and a Juris

Judge Doty replaces Dustin Howell to fill a vacancy on the recently created 455th District Court, which will handle civil and family law cases.

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.

PATIENT

Doctor degree from the University of Chicago School of Law. Attorney General Ken Paxton commends Governor Abbott’s appointment of Doty as Judge of the 455th Judicial District Court in Travis County. In

PRACTICAL

Cleve Doty

his comments on nominating Doty, Gov. Abbott noted that to this distinguished position, Doty brings his experience from the Office of the Attorney General, his time with the First Liberty Institute, and his long-standing participation in the Federalist Society. “Cleve Doty is an excellent choice for the 455th Judicial Court, and I have full confidence that he will protect Texas values and work to keep our state a safe place to live and raise a family,” Attorney General Paxton said. “Cleve has always served the Office of the Attorney General with respect and dignity as an exceptional assistant attorney, and I look forward to watching him do the same for Travis CounAUSTINLAWYER AL AL ty and the State of Texas.”

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AUSTINLAWYER | DECEMBER 2021/JANUARY 2022

Rob Hargett

Continue to Make Connections in Our Legal Community A 2022 New Year’s Resolution

had intended to write an article for the December issue of the Austin Lawyer encouraging readers to both submit nominations for the annual Pathfinders lunch that the Travis County Women Lawyers’ Association (TCWLA) organizes each January and buy a ticket to attend the lunch on Tues,, Jan. 25, 2022. And I do hope you will nominate for the Pathfinders award a woman lawyer you might know who has used her law degree in novel and groundbreaking ways. Then I received an email from Ciara Parks, the president of the Austin Black Lawyers Association (ABLA), encouraging her fellow Austin Bar affinity group presidents to invite their members to attend the annual ABLA Andrea Pair Bryant Legacy Lunch in February 2022. In seeing Ciara’s email, I was reminded that I met Ciara a few years ago when she graciously participated on a lawyers panel for the annual TCWLA Color of Justice event. Through my involvement in TCWLA and the Austin Bar Association, I have had not only the pleasure to make connections with attorneys in our community but also the honor to engage in philanthropic and professional efforts alongside so many wonderful lawyers and legal professionals in Austin. The Austin Bar’s goal this year

I encourage you to adopt a New Year’s resolution to join at least one local attorney group and attend one professional event this coming winter and spring.

2018 annual Color of Justice Program: The attorney panel shared tips to succeed in the legal profession with middle and high school students. Panel members (from left) Paige Duggins-Clay, Husch Blackwell; Adriana Reyes, K & L Gates; Jennifer Hopgood, moderator, Travis County Attorney’s Office; Ciara Parks, Texas Board of Law Examiners; and Jorge Padilla, Jackson Walker.

is to increase membership of both old and new members. With new attorneys moving to the area, and as the fog of pandemic isolation gradually lifts, I encourage you to adopt a New Year’s resolution to join at least one local attorney group and attend one professional event this coming winter and spring. (On my to-do list for 2022 is to join the Austin Bar’s real estate section.) And if a financial consideration is a barrier, most organizations will provide a reduced rate upon request or a scholarship to attend more expensive events,

such as Bench Bar. By joining a group or section and attending an event, you will definitely make a connection with other lawyers, and you may also make a new friend, or three! Hope to see you at an event this coming winter and spring of 2022! CONNECT IN 2022 • TCWLA Pathfinders Lunch: Submit a nomination to president@tcwla.org by close of business Tues., Dec. 7, 2021 and buy a ticket to the Jan. 25, 2022 award lunch at tcwla.org/ events.

Jennifer Hopgood is an assistant county attorney at the Travis County Attorney’s Office in the Land Use Division. She currently serves as president of the Travis County Women Lawyers’ Association and co-editor of the Austin Lawyer.

• TCWLA Judicial Reception: TCWLA’s annual judicial reception will be held on Feb. 10. Visit tcwla.org/events. • ABLA Andrea Pair Bryant Legacy Lunch: Purchase a ticket to the annual lunch to be held in February 2022 at austinblacklawyers.com. • Austin Bar Association Professional Sections: Join one of the 26 practice sections and attend a monthly CLE lunch with fellow lawyers. Go to austinbar.org for a list of the sections and click the link to AUSTIN LAWYER AL AL join a section.

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Offices in Austin, Round Rock and Dallas DECEMBER 2021/JANUARY 2022 | AUSTINLAWYER

ENTRE NOUS

“Don’t Blame Me: I Was Incentivized.” BY CLAUDE DUCLOUX The opinions expressed in the Entre Nous column are those of the author and do not necessarily represent the views of the Austin Bar Association membership or the Austin Bar Association board of directors.

ne of the joys of being a skillful class clown all through my early school years was having the approval of my classmates at my Catholic school, “Our Lady of Perpetual Bruising.” Now, clearly, my classmates used me as a tool to achieve their ends, whether that be to shock Sister Mary Lawrence with impeccable replications of (ahem) bathroom sounds, or spoton impressions of Sister Theresa attempting to teach “new math” in a voice so screechy it hurt dogs’ ears: “Oh my goodness, they say to solve this problem in something called ‘base 7.’ Can someone help me out?” I was “incentivized” by their laughter, thus blind to the disruptive effects of my creative interruptions on actual learning. Rest assured; the approval of my classmates did not reduce the punishments I often received. And that’s as it should be. Likewise, when a mafia boss complains about a non-compliant individual and suggests broadly that “he poses a problem,” a capo takes that message to a soldier and ‘incentivizes’ him to solve the problem. Still, saying “I was incentivized to take him out,” is not an effective defense or mitigation to the commission of the crime. Think about it: The boss knows he’s ultimately breaking the law, but creates a wall between himself and a clear violation of law. Okay, so you see where I’m going. As Paul Kahn, a professor of law and humanities at Yale points out, when governments 24

incentivize people with money, rewards, status, or gain to perform acts which are illegal for the government itself to perform, you are witnessing a declining society. Throughout modern history, demagogues achieved their ends by avoiding responsibility for undemocratic conduct by enlisting others to perform such acts for them. As we watch our world deteriorate, we see this work done around the globe by non-governmental militias, and, here at home, by groups like the Jan. 6 insurrectionists who were incentivized to take the law into their own hands to subvert the U.S. Constitutional process at the behest of those seeking to retain power. My fear is that we are witnessing the unraveling of fundamental democratic principles and trust in government in our beloved Texas and other states,

AUSTINLAWYER | DECEMBER 2021/JANUARY 2022

through the messaging and enactment of these same legislative devices. As lawyers, we should take pause. We are the defenders and guardians of the Rule of Law: Our solemn oath is to uphold the Constitution. We should be extremely uncomfortable when we see laws designed to circumvent the Constitution or to incentivize others to intimidate or interfere with the exercise of fundamental democratic rights. Even if your personal politics are simpatico to the ends, the means are dreadful and dangerous. If this trick works, we are in deep trouble. Think about our legal training: As law students we had the dual concepts of “standing” and “nexus” pounded into our heads. “Standing” is a requirement of Article III of the U.S. Constitution. We learned that courts use

“standing” to ask, “Does this party have a ‘dog in this fight?’” Standing limits participation in lawsuits and asks whether the person(s) bringing a lawsuit, or defending one, has enough cause to “stand” before the court and advocate, since not anyone can go to court for any reason. Empowering unrelated and unknown parties with whom you have had no interaction whatsoever to sue to recover a statutory penalty is breathtaking, especially when the person is being sued for actions the U.S. Supreme Court has held to be lawful. I’m referring, of course, to Senate Bill 8. The insidious purpose of this statute is twofold. First, it’s designed to outsource enforcement of the law to private citizens inside or outside Texas who have no connection with the actions of the doctors or patients.

We must ask: Should our laws be so one-sided that they create fear and intimidation without recourse? These enforcers, who are unelected and unaccountable to voters, like militias, are incentivized to frighten and intimidate people with threats of lawsuits and financial ruin. Ask yourself, where are

the “checks and balances” in this private-enforcement system? A second legal concept which occupied our studies was “nexus.” When applied to governmental action, “nexus” examines the

need and degree of governmental restriction against the right being restricted. In a law school con-law exam, defending the “need” for the severe Texas voting laws would earn the law student a failing grade. There is no supportable evidence to invoke these restrictions on the right to vote. It is simply about intimidation. If these laws can hurdle these combined limitations of “stand-

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ing” and “nexus,” we join the many failed governments, past and present, who circumvent law by thuggery, militias, and private action. To the point, we must ask: Should our laws be so one-sided that they create fear and intimidation without recourse? We know our latest voting laws will allow anyone to “supervise” polling stations: to freely roam inside the polling place looking over shoulders, stressing out voters and volunteers alike (and, in some cases, armed—if local governments allow it). Hmm? Wonder why? These new laws do not protect your right to vote. They protect and incentivize intimidation and fear, specifically to interfere with your right to vote without any penalty for such interference. None. Tell me, why aren’t intimidators who interfere with voters guilty of a felony under this law? Because their right to intimidate is a purpose of the law, and they are incentivized by that absence of penalty. We are pledged to live in a system of rules under the Constitution. We are driven to support the general welfare and secure the blessings of liberty and freedom. As a profession, I know we have different opinions, beliefs, and our own prejudices, but we need to take a hard look in the mirror and ask if outsourcing our culture to thuggery should be supported by the legal profession. I hope that answer is clear. Please be incentivized yourself to make your AUSTIN voice heard. LAWYER L AL -Keep the A faith.

Attorney Jillian French

Board-Certified in Family Law by the Texas Board of Legal Specialization

512.605.0999 DECEMBER 2021/JANUARY 2022 | AUSTINLAWYER

PRACTICE POINTERS

Pro Bono: Daring to Make a Difference BY KATE LINCOLN-GOLDFINCH AND LINDSAY GOLDFORD GRAY

The vast need for pro bono work can only be met when attorneys are willing to step outside their comfort zone.

Lindsay Goldford Gray is the CEO of VECINA, a nonprofit organization that provides mentorship and training to pro bono attorneys providing advocacy for asylum seekers, refugees, and other immigrants.

Kate Lincoln-Goldfinch is the president of the VECINA board of directors and the managing partner of Lincoln-Goldfinch Law, an immigration and bankruptcy law firm.

Available by video and in person

s the new year approaches, many attorneys think about giving back by doing pro bono work in partnership with nonprofit organizations. Here are a few practice pointers to leverage the hours you spend doing volunteer legal work: Don’t Be Afraid to Step Outside of Your Comfort Zone Don’t be afraid to try something that is outside of your practice

area! The vast need for pro bono work can only be met when attorneys are willing to step outside their comfort zone, and many nonprofits have resources and support systems to set you up for success. Be Responsive We know that life is very busy, and things happen! You may have time to take a case when you sign up for a project, but by the time you receive your assignment, things have come up for you. It’s

Become a Sponsor of the Austin Bar Association and watch your marketing dollars go further! 2022 Sponsorship Packages are now available.

For more information contact, Chellie Thompson chellie@monarchmediainc.com

AUSTINLAWYER | DECEMBER 2021/JANUARY 2022

VECINA has volunteer opportunities to assist asylum seekers from around the globe. To learn more, visit vecina.org/news/ fom-signup/.

better to be proactive and notify the organization before they or the client have relied on you so they can work on finding another volunteer attorney.

back. Nonprofits can use this information to show the in-kind value of your donated service, as well as how the organization is wisely using pro bono hours.

Prepare in Advance One of the most stressful aspects of pro bono work outside your practice area can be having a question and needing to wait on the answer. If you prepare in advance, you can avoid at least some unnecessary stress, as you are able to reach out to mentors at the partner nonprofit and wait on their guidance as needed.

Provide Feedback We know that no one loves filling out surveys or sending emails with constructive feedback, but nonprofits often don’t know the most commonly faced issues of their volunteers unless you tell them! We review all feedback we receive as a team so we can provide the best experience possible for our pro bono attorneys and the clients they serve.

Report Your Hours You’re not the only one who benefits from calculating how many hours of time you’ve spent giving

Take More Than One Case Once you’ve gone off and run-

Mediation. Arbitration. Resolution.

ning with one case, why not take come back time and time again more?! One of the best ways to because they learn not only the leverage your time is by develpractice area but also the policies oping a niche area of pro bono AUSTIN andLAWYER procedures of their organiAL AL practice. Nonprofit organizations zation. highly value volunteers who

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Austin Lawyer, December 2021/January 2022

Articles inside

AYLA Judicial Wine Tasting

AYLA Member Spotlight: David Holmes

20th Anniversary of Travis County Adoption Day

“Don’t Blame Me: I Was Incentivized.”

Pro Bono: Daring to Make a Difference

Email Memos, Part 3

AYLA Plans 12th Annual MLK Day of Service

Continue to Make Connections in Our Legal Community

It's a Wonderful Life

Choose to Do Something, Not Everything

Ask Your Friends: Are You an Austin Bar Member?

Fifth Circuit: Got 10 Seconds?