Austin Lawyer, February 2018 by Austin Bar Association

austinbar.org FEBRUARY 2018 | VOLUME 27, NUMBER 1

The Austin Bar Celebrates 125th Anniversary in 2018 A Look Back at Our Early Years Beginning in 1893

he city of Austin celebrated its 178th birthday in 2017, on the anniversary of its incorporation on December 27, 1839. In 1890, just a short 51 years after the city was formed, the Austin Bar Association was organized as a new century dawned. Begun with approximately 65 members, its official birthday is recognized in 1893 when its first president, John Dowell, was sworn in. In 2018, the Austin Bar Association officially celebrates its 125th anniversary. Throughout this anniversary year, we will take the opportunity to look back at some of the important

events and people in its 125year history. In 2005, the Austin Bar, under the leadership of Randy Howry, published a book about the history of the Austin Bar called “Austin Lawyers – A Legacy of Leadership and Service,” by Julia A. Woods, Ashley Craddock, and Regan Marie Brown. This book will serve as a resource for some of the anecdotes and stories highlighted in this publication throughout the year. A celebration of the Austin Bar’s 125th anniversary is being planned and will likely happen in the spring. More details about this event will be available soon.

SHOOTOUT AT THE DRISKILL HOTEL:

THE JOHN DOWELL INCIDENT The elegant Driskill Hotel at the corner of East Pecan (now 6th) and Brazos Street has been a popular gathering place for lawyers, judges, and politicians from the time it opened its doors in 1886 into the 21st century. But on April 16, 1908, the Driskill lobby was the site of a pitched gun battle between two prominent lawyers. The Austin Bar Association’s first president, John Dowell, and San Antonio attorney Mason Williams had been engaged in a legal dispute for months over a small ranch in Williamson County. Tempers escalated until the day before the shooting, when Dowell sought to have Williams disbarred from the practice of law. The trial had been postponed until 2 p.m. on April 16. That afternoon, Dowell entered the Driskill

125

DRISKILL HOTEL

years

PHOTO: Exterior of Driskill Hotel, 1888, PICA 05049, Austin History Center, Austin Public Library. BOOK: Cover of “Austin Lawyers – A Legacy of Leadership and Service” by Julia A. Woods, Ashley Craddock, and Regan Marie Brown. Photo of the Texas State Capitol by J. Griffis Smith, courtesy of the Texas Department of Transportation.

Hotel lobby carrying a double-barreled shotgun and revolver. The lobby was filled with patrons on their way out from lunch, including Williams. Dowell shot Williams as he entered the lobby from the bar. Fortunately, Williams dodged behind a column and the rest of the room cleared out. After Williams drew his pistol, he and Dowell traded shots back and forth until bystanders disarmed both men. According to the account in the Austin Statesman, “Judge Charles Ogden, one of the most prominent lawyers of the state and attorney for the Hetty Green estate, was in the hotel at the time and had been with Mason Williams but a few minutes before the shooting. Mr. Ogden and E.P. Wilmot, president of the Austin National Bank, were talking together when the first shot was fired. Both men rushed in and helped to disarm John Dowell and stop the fight.” Neither combatant was seriously wounded. Dowell was eventually ousted from his seat as Austin Bar president and found to be “of unsound mind” after the shoot-out. However, he was not ordered to be restrained and was released from custody. He died in 1917. Excerpt “Austin Lawyers – A Legacy of Leadership and SerAUSTINfrom LAWYER AL79. AL vice,” page

CONTENTS

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

18 22

The Austin Bar Celebrates 125th Anniversary in 2018

DEPARTMENTS 5 Foundation Spotlight

A Look Back at Our Early Years Beginning in 1893

President’s Column

Read to a Child on Dr. Seuss Day – March 2

Opening Statement

Join the Austin Bar’s Law-Related Education Committee in Supporting Literacy for All

Briefs

Third Court of Appeals Civil Update

Consider a Leadership Position in 2018

Third Court of Appeals Criminal Update

Thank You LegalLine Volunteers and Sponsors

Federal Criminal Court News

Federal Civil Court Update

Practice Pointers

AYLA

Call for Austin Bar Board Nominations

2018 Austin Bar Judicial Preference Poll Closes February 8

ONLINE

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NEWS & ANNOUNCEMENTS

EVENTS & MORE

Austin Bar Foundation Gala Honors the Best in Profession

MAR 24 CANLAW Clinic 9 a.m. – 2 p.m. Lakeside Mediation Center 3825 Lake Austin Blvd # 403

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Read to a Child on Dr. Seuss Day–March 2 Join the Austin Bar’s Law-Related Education Committee in Supporting Literacy for All

awyers for Literacy is a group of lawyers passionate about helping Austin’s most at-risk children learn to read. The group operates in support of Literacy First, a program that places highly trained AmeriCorps members in low-income schools to deliver intensive and effective tutoring that advances K-2 students to grade level in reading by 3rd grade. The Austin Bar’s Law-Related Education Committee, together with Lawyers for Literacy, invite community members to fight against childhood illiteracy in Austin by joining us for Dr. Seuss Day on March 2, 2018. Give one hour to connect with AmeriCorps members, observe part of a one-to-one literacy tutoring lesson, and read a Dr. Seuss book aloud to a child.

Visit the Dr. Seuss Day blog page for more information and to access a sign-up for time slots. Questions? Contact Sarah Lowery, Literacy First development specialist, AUSTIN LAWYERat AL AL sarah.lowery@austin.utexas.edu.

AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION Amy Welborn ............................ President Adam Schramek ....................... President-Elect D. Todd Smith ............................ Secretary Kennon Wooten ...................... Treasurer Leslie Dippel .............................. Immediate Past President

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

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

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FOUNDATION SPOTLIGHT

Foundation Spotlight: American Gateways Immigrant Survivors Detention Project

he Austin Bar Foundation awarded seven grants in 2017 totaling close to $30,000. The Foundation has given $132,098 worth of grants to date. The 2017 grants were given to organizations working to provide legal-related services to members of the Central Texas community, including American Gateways. American Gateways’ mission is to champion the dignity and human rights of refugees and immigrant survivors of persecution, torture, conflict, and human trafficking through high-quality immigration legal services, education, and advocacy. The organization provides a broad range of free and lowcost legal services, including asylum and deportation defense, pursuit of humanitarian visas for survivors of crime and human trafficking, preparation of family-based petitions, and pursuit of citizenship. Their outreach team is out in the community providing essential information on the rapidly changing world of immigration law and policy. In 2017, American Gateways celebrated 30 years of service to the Central Texas immigrant community. Founded in 1987 as the Political Asylum Project of Austin (PAPA) by attorneys and

community leaders, it has grown to become an indispensable resource for low-income immigrants. With its headquarters in Austin and offices in San Antonio and Waco, the staff of 31 (including 15 attorneys and nine caseworkers) serves 20 counties and four immigration-detention centers. In 2016, with the support of the Austin Bar Foundation, American Gateways initiated a new project, the Immigrant Survivors Detention Pro Bono Representation Project (“the Project”), aimed at increasing pro bono representation for female asylum seekers detained at the T. Don Hutto detention center in Taylor. Asylum seekers in immigration detention face a lengthy and complex process involving multiple interviews and hearings with an array of federal agencies. This system is difficult, if not impossible, to successfully navigate without the assistance of an attorney. The challenges in navigating this process are compounded by conditions at the facility, the effects of trauma, language-access challenges, and miscommunication related to a lack of cultural competency. Most importantly, most women at the facility have no access to legal counsel at any stage during this process. The Project was

Asylum seekers in immigration detention face a lengthy and complex process involving multiple interviews and hearings with an array of federal agencies. This system is difficult, if not impossible, to successfully navigate without the assistance of an attorney. created to address that problem by facilitating pro bono attorney representation during the “credible fear interview” (CFI) phase of the asylum process, in which asylum seekers must first explain why they are afraid to return to their home countries. Specifically, the Project sought to secure representation for women when they appeal negative CFI decisions to an immigration judge. Attorney intervention at this relatively brief, but critical, stage in the process can be a decisive factor in determining whether these detained women will ever have

their day in court. Since receiving support from the Austin Bar Foundation, American Gateways has ramped up its recruitment of attorney and non-attorney volunteers and held more than three volunteer trainings, including one CLE training for pro bono volunteers. In 2018, plans include producing and recording a webinar on the “credible fear interview” process to allow for more efficient training of new recruits. They also plan on bringing attorneys to the facility where they can provideAUSTIN face-to-face LAWYER AL AL consultations with detainees.

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PRESIDENT’S COLUMN AMY WELBORN, PARTNER, HAWKINS PARNELL THACKSTON & YOUNG

Building Authentic Relationships

ost of my best friends are lawyers. Many of my friends come from the wonderful relationships I have made in the Austin Bar Association. It is important to build relationships with other lawyers. We can learn from their experiences and become stronger as our network grows. This is a very important function of the Austin Bar. The first president of the Austin Bar, John Dowell, was famous for having had a gunfight with his opposing counsel. We have come a long way since those days. As Austin Bar members, Austin citizens, and lawyers, we have a responsibility to maintain the reputation our predecessors have worked so hard to cement. Austin lawyers have a reputation for working together. I

AUSTINLAWYER | FEBRUARY 2018

know that this can be difficult at times, but it is important for all of us to work together. As the city of Austin has grown, so has the Austin Bar. I want to remind us all that we do not want to gain a reputation like other cities in Texas where some lawyers are known for being shady and unwilling to work together. It is important to go the extra step to work with your opposing counsel. When a case becomes very contentious, this can become difficult. It is important to remember that the lawyer on the other side is doing his or her job, and in the end, we should strive to build better relationships. When the emotions have run too high to consider my opposing counsel as a friend, I try to think of them as a referral source. It is the highest honor to be referred a case from your opposing counsel. Furthermore, it is important to bury the hatchet after a case; there will always be some contention between counsel. If a case settles, I like to hand deliver the check to my opposing counsel over coffee or drinks. This allows an opportunity to sit down together and get to know each other outside of the case. I have made very good friends

In an effort to bring back this amazing networking experience, Bench Bar will be held in San Antonio, Texas this year. from my time spent delivering settlement checks. I also, of course, use this as an opportunity to invite them to join the Austin Bar and tell them more about what it does for its members. As members of the Austin Bar, we frequently meet with those that are most “like us,” meaning we tend to hang out with folks in the same or similar practice areas. One way to expand our network and meet lawyers we may not know is to participate in the upcoming Bench Bar Conference. Some of you might remember when this annual conference was held out of town, over a long weekend. I

made some of my very best relationships with my fellow lawyers by attending these weekend retreats. So, in an effort to bring back this amazing networking experience, Bench Bar will be held in San Antonio this year. We will build new relationships and foster existing ones over CLE, networking activities, and just plain fun. Mark your calendars now for April 13 and 14, 2018 at the Elian Resort in San Antonio. I hope you will join us for this exciting conference and help the Austin Bar: Build Authentic AUSTINLAWYER AL AL Relationships.

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Call for Austin Bar Board Nominations Consider a Leadership Position in 2018

ustin Bar Association members are leaders in their firms, their communities, and their world. They work to make a difference and care deeply about the law, while juggling family commitments and responsibilities to multiple civic groups, non-profits, and faith organizations. This is especially true of those who serve in leadership positions. The dedicated, passionate, and talented lawyers who serve on the Austin Bar Board of Directors or as officers, along with those who chair its committees and lead its sections, are in the unique position of significantly impacting the Austin legal profession and the community at large. If you’ve been active in the Austin Bar and would like to join this dynamic leadership team, now is the time. If you

are interested in running for a position as an officer or on the Board of Directors for the Austin Bar, please send a résumé, along with the desired position, by Wednesday, Feb. 28 to: Austin Bar Association, ATTN: Nominating Committee, 816 Congress, Suite 700, Austin TX 78701. Officer positions are one-year terms; director positions are for two years. Nominees for the office of president-elect shall have served at least two years on the Board of Directors prior to assuming office. The Nominating Committee’s decision will be announced on or before Thursday, March 15. The number of candidates to be nominated for each position shall be left to the discretion of a majority of the Nominating Committee. Any qualified mem-

FEB 28 AUSTIN BAR 2018 BOARD NOMINATIONS MAIL RÉSUMÉ/POSITION TO: AUSTIN BAR ASSOCIATION 816 Congress, Suite 700 Austin TX 78701

ber not receiving the nomination of the committee may be included on the ballot by submitting a written petition signed by 75 members of the Austin Bar. Such written petitions must be submitted by Tuesday, April 10. Voting shall be conducted via electronic ballot and at the annual meeting of the membership on Friday, May 25. If you have questions about the nomination or election process, contact Austin Bar Executive Director, DeLaine Ward, AUSTIN LAWYER AL AL DeLaine@austinbar.org.

Austin Bar Association Board of Directors

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

AUSTINLAWYER | FEBRUARY 2018

ADAM LOEWY

LOEWY LAW FIRM

Representing Attorneys

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Grievance Oversight Committee Appointed by the Texas Supreme Court Chair, 2006-2010 Member, 2004-2010

Texas Board of Disciplinary Appeals

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State Bar of Texas

Disciplinary Rules of Professional Conduct Committee Member, 1993-1996

Disciplinary Review Committee Member, 1991-1992

Texas Bar Foundation, Fellow State Bar of Texas, Member Brazos County Bar Association, Member Austin Bar Association, Member

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OPENING STATEMENT

Beginning with However Avoiding it is a stylistic suggestion, not a rule. BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

“

y boss [professor, English teacher] told me never to begin a sentence with however.” I’ve heard this comment a number of times from law students and lawyers, and it’s often followed with a sincere “Why?” In this column I’ll discuss where this advice comes from and suggest that it’s a stylistic suggestion, not a rule. The most likely source of this prohibition is The Elements of Style by Strunk and White. Their advice against beginning with however is consistent through four editions: “Avoid starting a sentence with however when the meaning is ‘nevertheless.’”1 Why that advice? Strunk and White believed that when however comes first, it means “in whatever way” or “to whatever extent.”2 Here’s a pair of examples that show what they were thinking: a. However it turns out, the policy will cover the loss. b. However, it turns out the policy will cover the loss. In example a, however means “in whatever way,” but in b it means “nevertheless.” What distinguishes the meanings is the comma after however in example b. Apparently, Strunk and White worried that young writers (The Elements of Style is for college students, after all) would include or omit the comma incorrectly, creating an ambiguous however—hence the prohibition. Under the prohibition, when you mean “nevertheless,” you must move however into the sentence and set it off with commas. Here, examples c and d follow the rule against beginning with however, and example e breaks it. c. The brief, however, does not address personal jurisdiction. d. The brief does not, however, address personal jurisdiction. e. However, the brief does not address personal jurisdiction. Yet in reality, there’s no rule against beginning with however. According to Bryan Garner, beginning with however is “not a grammatical error.”3 Merriam Webster’s Dictionary of English Usage declares that “there is no absolute rule for the placement of however.”4 And Terri LeClercq says you may “use however in any position.”5 So for the meaning “nevertheless” or “on the other hand,” it’s fine to begin with however (plus comma). Legal writers can master comma rules sufficiently well to avoid the ambiguity Strunk and White feared. And beginning with however is not only grammatically justified, it has the advantage of signaling contrast for readers immediately, rather than later in the sentence. For example: f. We closed the deal on Thursday. However, the payment arrived on Friday. Of course, you can also place however mid-sentence to create desired emphasis, as we saw in examples c and d above. Just be sure that if you use a pair of commas, however isn’t separating independent clauses, which would require a semicolon and comma. g. Right: We closed the deal on Thursday. The payment, however, arrived on Friday. h. Right: We closed the deal on Thursday; however, the payment arrived on Friday. i. Wrong: We closed the deal on Thursday, however, the payment arrived on Friday.

And beginning with however is not only grammatically justified, it has the advantage of signaling contrast for readers immediately, rather than later in the sentence. Example j is a run-on sentence or comma splice, an error I occasionally see in legal writing. Of course, you could use but in these sentences and simplify the punctuation while punching up the transition. In fact, if there’s a stylistically justified reason to avoid beginning with however, it’s that however is a heavy, multisyllabic transition. j. We closed the deal on Thursday, but the payment arrived on Friday. k. We closed the deal on Thursday. But the payment arrived on Friday. So if your boss or professor tells you not to begin with however, think of it as a stylistic suggestion—but one you’re required to follow. Otherwise, place however where it creates the LAWYER emphasis you want, AUSTIN L 6 AL even if that’s at the beginning. And considerAbut. Footnotes 1 2 3 4 5 6

William Strunk Jr. & E.B. White, The Elements of Style 48 (4th ed. 2000). Id. at 49. Bryan A. Garner, Garner’s Dictionary of Legal Usage 415 (3d ed. 2011). Merriam Webster’s Dictionary of English Usage 515 (1994). Terri LeClercq, Expert Legal Writing 180 (1995). Wayne Schiess, Beginning with But, Austin Lawyer 11 (July/August 2013).

FEBRUARY 2018 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Christopher Glenn Adkins Trey Apffel Nick Bacarisse Moraya Baker Steve Collins Matthew Daley James R. Fletcher Crystal Ford Courtney Hatchett Clayton Hoover Zachary Kamykowski Merritt Lander Anne Michelle Martin Benjamin Nipper Taylor Raymond Yunju Rosa Sung Curran Walker Petrus Wassdorf III Emily Willis

TOP ROW: Crow, Dippel, Eastley, Espenshade, Evans, Fincher BOTTOM ROW: Hopkins, Metayer, Miller, Schweitzer, Secco, Winn

AWARDS

Ross Crow, assistant city attorney for the City of Austin, received the 2017 Galen Sparks Award for Outstanding Public Service by an Assistant City Attorney from the Texas City Attorneys Association. The award honors a current or former assistant city attorney for significant career achievements in the field of municipal law. Rudy Metayer was elected to the Pflugerville City Council in November, 2017. Metayer practices at Chamberlain McHaney and is on the State Bar Board of Directors. Sharon Schweitzer, of Access to Culture in Austin and author of “Access to Asia,” was named a 2017 Winner of the New York City Big Book Award in the Multicultural Non-Fiction category. Schweitzer’s book was previously named to Kirkus Reviews’ Best Books of 2015. Texas Legal appointed Elizabeth Winn to its Board of Directors. Winn currently serves as assistant general counsel to Central Texas Health, as an employee of the Travis County Attorney’s Office, where she provides legal counsel on healthcare and IT contractual matters. NEW TO THE OFFICE

Allyson Boney Evans has joined the City of Austin Law Department as a new attorney. Evans’ practice focuses on 12

AUSTINLAWYER | FEBRUARY 2018

health law matters, including the Children’s Health Insurance Program, Medicaid Waivers, and other programs related to healthcare policy and transactions. MOVING ON UP

Leslie Dippel was recently promoted to the position of director of the Civil Litigation Division of the Travis County Attorney’s Office. In addition to her practice focus of employment law, she litigates and oversees all cases filed against Travis County and its employees in state and federal court, at both the trial and appellate-court level. She also provides legal counsel to the Commissioners Court and other County-elected and appointed officials on open-government issues and general liability issues prior to and related to litigation. Sherri Eastley and Steven Espenshade have been named members of Pirkey Barber. Eastley focuses on a wide range of trademark issues. Espenshade brings extensive knowledge in the fields of trademark, copyright, and right of publicity law. Locke Lord recently promoted Lauren Fincher to partner. Fincher is a litigator with broad experience in government and administrative agency matters, regulatory compliance issues and commercial and antitrust litigation. She has represented companies in all phases of disputes, including internal and government investigations,

administrative hearings, and appeals and litigation through trial in both state and federal court. Franklin Hopkins became a Principal with Germer Beaman & Brown PLLC on January 1, 2018. Franklin is Board Certified in administrative law and represents licensees before several state and federal agencies. Using his 10 years of service in the U.S. Army JAG Corps, he also represents servicemen and servicewomen with discharge and U.C.M.J. issues. Paul Miller became a Principal with Germer Beaman & Brown on January 1, 2018. Paul is licensed to practice in all Texas state courts, as well as the United States District Courts for the Northern, Western, and Southern Districts. Paul has experience in personal injury and first-party insurance cases as well as construction defect litigation, product liability, and corporate ventures, including formation of business entities in Texas. Marisa Secco has been named partner at Vinson & Elkins. Secco represents individuals and entities in commercial disputes, tax controversies, restructuring litigation, and civil appeals. She served as Rules Attorney for the Supreme Court of Texas from 2011-2013, giving her a unique understanding of Texas procedure, and was named in 2014 as one of 20 “Winning Women” by Texas Lawyer.

The Expert’s Expert. Randall Wilhite is Board Certiﬁed in Family Law by the Texas Board of Legal Specialization. He is also a Fellow in the American Academy of Matrimonial Lawyers as well as the International Academy of Family Lawyers. As a Certiﬁed Public Accountant and an Adjunct Professor of Law at the University of Texas School of Law, Randy serves as trial counsel and co-counsel throughout the State of Texas on issues of business valuation, characterization of assets, premarital agreements, tracing, business distributions and trusts. Randy is also one of the most accomplished and experienced mediators and expert witnesses in the State. He is regarded as one of the most distinguished family law attorneys in Texas.

Randall Wilhite Senior Partner; Family Law; Litigation; Arbitration; Complex Asset Division; Business Valuation P: 512.610.2335 | E: rwilhite@fullenweider.com

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THIRD COURT OF APPEALS CIVIL UPDATE

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

The following are summaries of selected civil opinions issued by the Third Court of Appeals during November and December 2017. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of January 4, 2018.

ARBITRATION: Non-signatories are bound by contract’s arbitration provision. Dargahi v. Handa, No. 03-1700386-CV (Tex. App.—Austin Nov. 8, 2017, no pet. h.) (mem. op.). Handa sued builders and their LLC for breach of contract

and DPTA violations over the construction of a home. After the lawsuit had been pending for several months, builders sought to compel arbitration. The trial court denied builders’ motion to compel arbitration. According to the court of appeals, that builders were non-signatories on the contract did not bar arbitration. The construction contract was between Handa and the LLC. The court observed that when a principal is bound by an arbitration agreement, its agents and representatives are also bound, even those who did not sign it. The court also concluded that builders did not waive arbitration by invoking the judicial process. Builders never sent discovery or filed dispositive motions. The court reversed and rendered judgment granting the motion to compel arbitration. IMMUNITY: Term employment contract does not bar discrimination claim. Texas State Univ. v. Quinn, No. 03-16-00548-CV (Tex. App.— Austin Nov. 29, 2017, no pet. h.) (mem. op.). University hired Quinn as an “emergency” hire on two one-year contracts to teach as a clinical associate professor. When the University made the position permanent, Quinn applied, but was not hired. Quinn sued, claiming disability and age discrimination and retaliation. The

trial court denied University’s sovereign-immunity plea to the jurisdiction. According to the court of appeals, the failure to hire Quinn for the permanent position is some evidence of an “adverse action.” The court further rejected University’s argument that Quinn was not replaced by anyone because her term-contract expired. The court affirmed. PUBLIC INFORMATION ACT: Court concludes information regarding Medicaid reimbursement claims is public. Paxton v. Texas Health & Human Servs. Comm’n, No. 03-15-00652-CV (Tex. App.— Austin Dec. 14, 2017, no pet. h.). HHSC sought to withhold healthcare service providers’ Medicaid reimbursement claims. Because the requested information did not identify individuals, AG contended it was not confidential. The trial court granted summary judgment for HHSC. Human Resources Code §12.003 prohibits disclosure of “information concerning [] persons applying for or receiving [Medicaid] assistance.” The court of appeals interpreted §12.003 as protecting only information that names or refers to Medicaid applicants or recipients, and as not shielding all information concerning Medicaid claims. The court reversed and remanded. According

to the dissent, the requested information in a claim-by-claim format necessarily concerns a person applying for or receiving Medicaid assistance and should be protected. TRIAL PROCEDURE: Court upholds exclusion of attorneyfees evidence. Mid Continent Life & Equip., LLC v. J. McNeill Pilot Car Serv., No. 03-16-00290-CV (Tex. App.—Austin Dec. 15, 2017, no pet. h.). Mid Continent appealed the trial court’s exclusion of its attorney-fees evidence. Mid Continent asserted a claim for attorney’s fees by amended petition in compliance with a scheduling-order deadline, but produced its fee statements after the scheduling-order expert-designation deadline and after the close of discovery. McNeil sought exclusion of the attorney-fees evidence under TRCP 193.6. The court of appeals rejected Mid Continent’s argument that there can be no unfair surprise or unfair prejudice if it is possible for the opposing party to prepare for the late-disclosed evidence. Here, the trial date was postponed, but the scheduling-order deadlines were not amended. According to the court, the discovery rules emphasize completion of discovery within deadlines that operate independently from the AUSTIN LAWYER AL AL trial date. The court affirmed.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

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

IN-COURT DEMONSTRATIONS: Officer’s in-court demonstration of appellant’s display of a firearm during commission of offense was admissible as it was “substantially similar” to event as described by witnesses. Warfield v. State, No. 03-1500468-CR (Tex. App.—Austin June 14, 2017, pet. ref’d) (mem. op., not designated for publication). Appellant was convicted of multiple offenses, including aggravated assault with a deadly weapon, arising out of a roadside encounter on a highway. During the incident, appellant followed closely behind another vehicle at a high rate of speed and eventually drove past the vehicle, allegedly pointing a gun at the driver of the vehicle as he did so. Appellant’s defense at trial was that he had merely extended his middle finger at the driver. During the arresting officer’s testimony, the State had the officer perform a demonstration of appellant’s display of a firearm. To do so, the officer pointed his own firearm at a document camera to provide the jury with a view of “looking down the barrel of a gun.” The officer also extended his middle

finger at the camera to demonstrate the gesture of “flipping someone off,” in order to show the jury the difference between looking directly at a gun and looking at an extended middle finger. The appellate court concluded that the demonstrations were permissible. The court noted that a trial court has discretion to admit a relevant in-court demonstration that is “substantially similar” to the event it seeks to illustrate. In this case, two witnesses described appellant’s display of the weapon—the passenger in appellant’s vehicle at the time of the incident and the driver of the other vehicle. The court observed that the incident as described by the witnesses was substantially similar to the officer’s demonstration, including the description of the “type, color, size, and caliber” of the weapon used during the commission of the offense. Any dissimilarities, the court added, went to the weight rather than the admissibility of the evidence. The same was true of the portion of the demonstration in which the officer extended his middle finger at the camera. The court concluded that because the officer’s demonstrations were “supported by the evidence and reasonable inferences from the evidence,” there was no abuse of discretion.

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BLOOD-DRAW WARRANTS: Blood-draw evidence admissible although blood was drawn by person not specified in search warrant. State v. Gray, No. 03-17-00174CR (Tex. App.—Austin June 22, 2017, no pet.) (mem. op.,not designated for publication). Following her arrest for DWI, Gray’s blood was drawn pursuant to a search warrant. The warrant specified that Gray’s blood could be collected by “a physician, registered nurse, licensed vocational nurse, or licensed clinical laboratory technologist.” Gray’s blood was drawn instead by a certified emergency medical technician. Gray filed a motion to suppress the evidence obtained through the blood draw, arguing that the technician did not fall into any of the categories of individuals authorized by the warrant to collect a sample of Gray’s blood. The trial court granted the motion to suppress, explaining that it could not “look beyond the four corners” of the warrant when determining whether an individual was authorized to collect blood. The State appealed, arguing that the trial court had erred by reading the warrant in a “hypertechnical manner” and applying the “four-corners rule” to the execution of the warrant. After first rejecting Gray’s contention that the State had waived these arguments by not raising them in the court below, the appellate court agreed with the State and reversed. According to the court, the issue was not whether Gray’s blood had been drawn by an individual specified in the warrant but whether the blood draw was reasonable under the totality of the circumstances. In this case, the court concluded that it was. First, the warrant initially instructed the arresting officer to take Gray “to a physician, registered nurse, licensed vocational nurse, licensed clinical laboratory technologist, or an individual who

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.

is trained to properly collect blood from the human body.” The technician in this case testified that he had extensive training in drawing blood and had performed numerous blood draws. Moreover, the technician appeared to be within one of the groups of medical professionals authorized by the Transportation Code to perform blood draws. Also, the technician’s affidavit indicated that the blood sample was taken in a sanitary place and in a manner recognized as reliable by the scientific community. For these reasons, the court reversed the trial court’s suppression order and remanded the case to theLAWYER trial court for AUSTIN AL AL further proceedings.

FEBRUARY 2018 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

The Other Kind of Attorney Admissions BY DAVID PETERSON

made a mistake in one of my cases, and now that mistake is going to be heard in the Supreme Court. It’s not my proudest moment, nor how I pictured a case with my name attached to it going before “The Court.” I shouldn’t make light: I wanted to run and hide; I wished I could come up with some excuse or wish it away. But it provides a good example of something lawyers need to get better at: admitting our mistakes. My client was looking at 77 to 96 months in federal prison for coming back to the country after being deported to Mexico. His criminal history in the United States drove that guideline range, but I truly believed it was too high. I fought hard to get the judge to ignore that guideline range and asked for a break: a mere four years in prison for returning to the United States. I fought so hard that I missed a very basic mistake in the presentence report—it counted one of my client’s convictions twice, and his guideline range should have been lower: 70 to 87 months. The judge denied my request for leniency and gave my client 78 months in prison. The government conceded

the error on appeal, but the Court held that—because I hadn’t objected—they wouldn’t reverse for resentencing because the error wasn’t one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” Fortunately, the Supreme Court will decide whether that’s the proper standard. Frankly, I think that even the chance that my client got an extra seven or eight months in prison because of an accounting mistake that I missed shocks the conscience, but the Fifth Circuit disagreed. Maybe I’m not the common man. Everyone in the courtroom missed the mistake: me, the prosecutor, the probation officer, and the judge. But it doesn’t matter that everyone missed it; it matters that I missed it. I have witnessed lawyers bending over backwards to hide, obscure, or minimize their mistakes; I also have seen lawyers candidly admit them and try to correct them. I believe that the latter is the better path: you don’t leave the courtroom with a clearer conscience, but you do leave the

courtroom with a clearer idea of what you need to do the next time. Especially when you represent poor criminal defendants, everyone will take your side if you turn against them or sell them short. When I told a former boss about this situation, he said, “you know, you don’t have to tell people that this was your case.” But I disagree. I’m not telling this story to beat myself up. We all make mistakes, and what we have to do—not “even” as lawyers, but especially as lawyers—is admit our mistakes AUSTIN LAWYER AL AL and try to make them right.

David Peterson is an assistant federal public defender for the Western District of Texas. Any views expressed are his views only and not that of the Office of the Federal Public Defender.

Offices in Austin, Round Rock and Dallas 16

AUSTINLAWYER | FEBRUARY 2018

FEDERAL CIVIL COURT UPDATE

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

EMPLOYMENT: Time spent on site by employees before the beginning of their shifts was not “integral and indispensable” to their duties erecting scaffolds at the oil refinery and thus not compensable under the FLSA. Bridges, Gonzalez, Alanis v. Empire Scaffold, LLC, No. 1641493 (5th Cir., Nov. 9, 2017), revised Dec. 1, 2017: Empire required its employees to take buses from a parking lot to the refinery between 5:00 a.m. and 6:15 a.m. Under Empire’s policy, employees that missed the last bus at 6:15 a.m. would not be able to work until the next day. Empire did not allow the employees to access the refinery by any other means, such as riding in another contractor’s

van. Empire’s proffered reason for this policy was to prevent chaos and congestion of vehicles at the refinery, as well as to keep the refinery secure. The bus ride to the refinery took approximately 20 to 30 minutes. Plaintiffs sued under the Fair Labor Standards Act (FLSA) for failure to compensate for pre-shift wait time. The District Court held pre-shift wait time was excluded from compensation under the Portal-to-Portal Act. The Fifth Circuit affirmed the granting of Empire’s motion for summary judgment on these claims and held that time spent waiting for the shift to start was not tied to an activity that benefited Empire. In fact, it was Empire’s policy not to begin the activities of scaffolding building, safety meetings, and safety paperwork—the principal activities Plaintiffs were employed for— until after the shift began and thus, the activities were not “integral and indispensable” to their duties. EMPLOYMENT: Plaintiff’s FMLA retaliation claim failed because Plaintiff did not present sufficient evidence to

SUZANNE COVINGTON Senior District Judge

SPECIAL JUDGE BY ASSIGNMENT Arbitration Mediation 512-923-8705 suzanne.covington@judgecovington.com www.judgecovington.com

raise a fact issue as to whether his employer’s reasons for his termination were pretext for discrimination. Clark v. Southwest Airlines, No. 1:16-cv-00910 (W.D. Tex., Oct. 26, 2017): Plaintiff took approved intermittent leave under the Family and Medical Leave Act (FMLA) for his migraine headaches and alleged that he received a negative evaluation as a result of the leave-related absences. Plaintiff also alleged he received a note mocking his leave. Years after beginning his intermittent leave, Southwest terminated Plaintiff’s employment for making threatening comments about bringing a shotgun to work. Plaintiff sued for retaliation under the FMLA. The District Court granted Southwest’s summary judgment motion, finding that Plaintiff’s denial that he made the threatening comments was insufficient to raise a fact issue regarding pretext. The Court need not determine whether Plaintiff actually said that or whether Southwest made a correct decision in firing Clark, but whether Southwest was motivated by retaliation. The evidence showed that Southwest conducted an investigation into a complaint from a co-worker expressing her concern about Plaintiff’s comments, and subsequently decided to terminate Plaintiff’s employment. There was no evidence that Southwest was motivated by retaliation and Plaintiff’s mere denial of making the statement was not enough.

Wilson Stoker is board certified in Labor and Employment Law by the Texas Board of Legal Specialization and senior vice president and managing attorney with Welter Law.

ed leave under the Family and Medical Leave Act (FMLA) and was terminated for job abandonment after failing to return to work after a vacation. Plaintiff sued for interference and retaliation under the FMLA. The Court found Plaintiff’s interference claim failed as a matter of law because Plaintiff could not show he was entitled to leave as he did not suffer from a serious health condition (even though he went to several medical appointments during his leave and was trying to “get his health back in order”). Additionally, Plaintiff’s FMLA retaliation claim failed as a matter of law because he failed to establish a causal link between his leave request and termination and did not rebut his employer’s legitimate, non-retaliatory reasons for EMPLOYMENT: Plaintiff’s his termination—his failure to failure to show he suffered return to work after vacation, his from a serious health confailure to timely submit his meddition defeated his FMLA ical certification, and his lack of interference claim, while his communication concerning his failure to rebut his employreturn to work. In granting the er’s reasons for his termiemployer’s summary judgment nation defeated his FMLA motion, the District Court also retaliation claim. noted that Plaintiff was on Dozier v. Winco Trucking, LLC, probation for his performance No. 4:16-cv-00077 (W.D. Tex., AUSTIN issues before requesting FMLA LAWYER AL AL Oct. 27, 2017): Plaintiff requestleave. FEBRUARY 2018 | AUSTINLAWYER

Thank You LegalLine Volunteers and Sponsors

n the first Tuesday of every month, The Lawyer Referral Service of Central Texas (LRS) hosts LegalLine, a program in which attorneys volunteer their time to

tive 170 pro bono hours. We would like to give a special â&#x20AC;&#x153;thank youâ&#x20AC;? to ThunderCloud Subs, Highway 290 E. location, for the delicious subs they donated to feed our volunteer attorneys this year.

On the first Tuesday of every month, The Lawyer Referral Service of Central Texas (LRS) hosts LegalLine, a program in which attorneys volunteer their time to answer legal questions from the public, via telephone, for two hours. answer legal questions from the public, via telephone, for two hours. This year, 37 attorneys answered 790 calls, offered roughly $46,750 worth of free legal advice to members of our community, and gained a collec-

If you would like to participate in the LegalLine program, please contact Annie Melendez, LRS executive director, at annie@austinlrs.org to learn how AUSTIN LAWYER AL AL to become an LRS member.

2016-PRESENT

AUSTINLAWYER | FEBRUARY 2018

PRACTICE POINTERS

Getting Along with Opposing Counsel BY DIRK JORDAN

on’t you hate it when you get a jerk as opposing counsel? They are unreasonable, they don’t respond to your voicemail or emails, and they generally act like they were weaned on a dill pickle. Litigation can be emotionally taxing because of the disagreeable counsel. Some lawyers think each case is a personal fight, and everything they do to make your life inconvenient is a win for their client. This is short-sighted and just plain wrong.

1. Be mindful of your attitude. Realize that your opponent is doing her job. She has a client to represent, and she cannot agree with your client’s position, at least right away. Keep in mind that the fight is between the clients, not the lawyers. The lawyers must be the adults in the room. Comport yourself like an adult. 2. Be proactive by engaging your opponent. That means giving her a call, not when you have to talk about scheduling, but much before. In fact, I generally offer to take

It is important to bring civility into the process, and it is your responsibility to do so. Do not wait on the other side to make the first move. Here are some steps that might help you get along with opposing counsel. My experience is, if you treat your counterpart with respect, he or she will respond in kind. It is important to bring civility into the process, and it is your responsibility to do so. Do not wait on the other side to make the first move.

my opponent to lunch if I don’t know her (or even if I do) so we can get past some of the discomfort of dealing with someone we do not know. During lunch we do not talk about the case as much as our experiences, war stories, and things like that. The goal is to become comfortable dealing with your counterpart. And by doing so, you have fewer

ticky-tacky motions being filed, which saves you time and your client money. Make the engagement in person or over the telephone, not by text or email. Most of our communication is by body language and voice tone. A lot of misunderstandings come from people trying to guess what was meant by a certain word or phrase in a text or email. Talking is immediate and you can work out any misunderstandings instantly. It does not always work. There is nothing you can do to change someone who is determined to be a jerk. I do not know what is in the water in the 214 area code… just saying. But by and large my efforts have been rewarded with a civil, agreeable relationship with my counterpart. The judges in Travis County express their surprise when lawyers come before them having never spoken. Talk to your opponent. It is amazing how much you can accomplish by just picking up the phone. 3. Be generous. I tell my opposing counsel right away that anytime they need an extension, they only have to ask and they get it. The Disciplinary Rules give you as counsel the right to

Dirk Jordan has a solo practice focusing on commercial litigation and is an adjunct professor at the University of Texas School of Law teaching classes on law firm management. He is also the Chair of the Law Practice Management Committee for the State Bar of Texas.

give extensions. When someone says they “have to check with their client,” I know they are going to be difficult. Being a lawyer is stressful by its very nature because we are in conflict resolution. But you can make it a lot easier on yourself if you AUSTIN can get along with LAWYER AL AL your opposing counsel.

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FEBRUARY 2018 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Gives Back Through Community Service Days

n November 4, manity to help build a new home 2017, AYLA for a single mother and her three partnered with the children in East Austin. The Green Corn Project build day was part of Habitat for to help clear, aerate, and plant Humanity’s 22nd annual Home four vegetable garden beds for for the Holidays Blitz Build Florence’s Comfort House, a recently featured in the Austin non-profit group that provides American Statesman. free after-school care for chilBoth projects were part of dren in East Austin. The Green AYLA’s Community Service Corn Project assists hundreds Days program that provides of Central Texans with buildopportunities for Austin’s legal ing and maintaining their own community to volunteer each organic-food gardens so they month for the benefit of various can have access to nutritious, Austin area non-profit organiaffordable food. zations. Be on the lookout for On December 9, 2017, AYLAAUSTIN more volunteer opportunities in LAWYER AL AL teamed up with Habitat for Hu2018!

AYLA members plant a vegetable garden for the Green Corn Project. (from left) Patrick Mehaffy, Sommer Greaves, Jasen Wallace, Brittany Stanford, Alina Flasinska, Erin Leake, and Blair Leake.

25th Anniversary of Bar & Grill Traveled Back Through Time

n Saturday, November 18, 2017, AYLA held the 25th Anniversary show of Bar & Grill: Guardians of Democracy at the Scottish Rite Theater. This year’s show took our cast 25 years into the past, thanks to a gavel that opens a time-travel portal. Our Guardians of Democracy had to ensure that Russian spies didn’t alter the course of history. The show included cameos from Austin Bar President Amy Welborn, AYLA President Austin Kaplan and perennial Austin Bar favorites—Laura Sharp and Jo Ann Merica. The money raised by Bar & Grill supports AYLA Foundation projects such as Holiday Baskets and Reindeer Games, and the Women’s Resource Fair. AYLA would like to thank the generous sponsors of the show and LAWYER everyone who purchased AUSTIN AL AL tickets.

AUSTINLAWYER | FEBRUARY 2018

PRODUCER Norton Rose Fulbright SUPPORTER Baker Botts Blazier, Christensen, Browder & Virr Goldsmith, Bogisch & Chaires Lawpay PATRON Nadia & Chad Bettac Claude & Susan Ducloux Judge Elisabeth Earle Friday Milner Lambert Turner Chari Kelly for Third Court of Appeals Judge John Lipscombe & Judge Jan Breland Jorge & Jackie Padilla The Sharp Firm Velva Price, Travis County District Clerk Judge Todd Wong SPECIAL THANKS Emily’s Catering Floyd Real Estate Pam Friday, Sarah Yurko, and Hill Country Middle School Studio E

The cast and crew of Guardians of Democracy, celebrating the 25th anniversary of Bar & Grill.

AUSTIN YOUNG LAWYERS ASSOCIATION

Interested in Serving on the AYLA Board?

he Austin Young Lawyers Association is seeking attorneys interested in serving on its board of directors for the 2018 – 2019 Bar year. It is often said that one only gets out of an organization that which one put into it. Serving on the AYLA Board is not only a way to give back, it is the best possible way to gain the most from being involved in the organization. To be eligible for a board position, candidates must be a current AYLA member and be 40 years of age or under as of July 1, 2018.

MAR 2 AYLA BOARD NOMINATIONS debbie@austinbar.org BALLOTS: ayla.org

To be placed on the ballot, submit a nomination form signed by 10 current AYLA members to Debbie Kelly at debbie@austinbar.org. Ballots can be found at ayla.org. Nominations are due Friday, AUSTINLAWYER AL AL March 2, 2018.

Fourth Annual Runway for Justice

or the fourth year in a row, the Austin Young Lawyers Association’s fashion show, Runway for Justice, will return. This year’s show will be on Thursday, March 22, 2018 at 800 Congress Ave. The show will feature both male and female attorney models strutting their stuff to highlight local designers, jewelry, and accessories on behalf of the AYLA Foundation and the Women’s Resource Fair. Attendees will enjoy complimentary drinks and hors d’oeuvres and receive a swag bag filled with goodies. Don’t miss your chance to see the latest

22, 2018

fashion styles and mingle with friends. Tickets go on sale soon. If you would like to sponsor or be involved with the show, please contact DebbieLAWYER Kelly AUSTIN AL AL at debbie@austinbar.org.

Holiday Baskets & Reindeer Games

n Sunday, Dec. 10, 2017 the Austin Young Lawyers Association presented the annual Holiday Baskets & Reindeer Games event. Once again, the Austin legal community came out strong in terms of donating their time and money. This project raised approximately $10,000, with all proceeds going to serve these families. Children were able to decorate ornaments, get their faces painted, and take pictures with Santa. Thank you to all our volunteers that made this event possible. Special thanks to our generous sponsors: PLATINUM SPONSOR Graves, Dougherty, Hearon & Moody GOLD SPONSORS Austin Bar Association – Civil Litigation Section Austin Bar Association – Construction Law Section Austin Bar Association – Estate Planning & Probate Section Austin Bar Association – Labor &

Employment Section Cantilo & Bennett Hanna & Plaut King Law Group Norton Rose Fulbright Tully Rinckey PLLC SILVER SPONSORS Amanda Arriaga Austin Bar Association – Family Law Section Austin Bar Association – Solo/Small Firm Section Fritz, Byrne and Head Tracy McCormack FAMILY SPONSORS Paige Amstutz Austin Bar Association – ADR Section Austin Bar Association – Financial Institutions Section Erin Smith Bennett The Carlton Law Firm Kelley Dwyer Jennifer Hopgood Austin Kaplan Mishell Kneeland Steve McConnico The LawLAWYER Office of Janet McCullar AUSTIN AL AL Susan Salch

(from left) Rachael Jones and her son, Austin Kaplan, Rudy Metayer, Debbie Kelly, Adam Schramek, Theresa Golde and David King at the 2017 Holiday Baskets and Reindeer Games.

UPCOMING EVENTS THURSDAY, FEB. 15, 2018 Diversity Bar Mixer 5:30 – 7:30 p.m. Sellers Underground 213 W. 4th St. For more information on AYLA events, visit ayla.org.

FEBRUARY 2018 | AUSTINLAWYER

2018 Austin Bar Judicial Preference Poll Closes February 8

embers of the Austin Bar and the Austin Criminal Defense Lawyers Association received an email with a link to the biannual Judicial Preference Poll on January 25, 2018. The private preference poll allows members of both organizations to rate 17 candidates in seven Travis County judicial races who will appear on the ballot in the March primary. The short poll gives the general public an oppor-

tunity to see how local attorneys evaluate their colleagues in the legal community. For each race, Austin Bar and ACDLA members are asked to indicate which candidate they believe are best qualified to serve in the position for which he or she was running. The results are strictly the opinions of the individual attorneys returning their ballots and are not intended as an endorsement of any candidate or candidates by either the Austin

Bar Association, ACDLA, or any affiliated organization. The poll, conducted online through Ballot Box, an online AUSTIN BAR JUDICIAL PREFERENCE POLL polling system, will remain open BALLOT BOX POLL CLOSES until February 8, 2018. The 5 p.m. email was sent from austinbar@ QUESTIONS: 512.472.0279 ballotboxonline. If your 2018 Austin Bar dues were paid by Jan. 15, 2018, and you haven’t received the email, please check the poll, contact the Austin your spam filter and add this Bar office at 512.472.0279 and address to your safe-senders list.AUSTIN another ballot will be emailed LAWYER L AL If you have trouble accessing toAyou.

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