austinbar.org FEBRUARY 2022 | VOLUME 31, NUMBER 1
Are We There Yet? Yes, and We’ll Finish This Journey Together BY DAVID COURREGES
I
t is 114.7 miles from the driveway of my childhood home in China Spring to the driveway of my mom’s childhood home in Austin. For most of my young life, our little family of two spent at least a portion of every Christmas, Easter, and Thanksgiving driving that 114.7 miles to celebrate with my grandparents and cousins. The trip to Austin was divided into two parts. The first half was spent primarily on State Highway 317, driving through some of Central Texas’s finest small towns with farms, ranches, and “Texas” as far as the eye could see. It was a real-life Dalhart Windberg painting. Frankly, it was the longer part of the trip, but it seemed to go by so fast. You had to watch out for the speed traps and blinking red lights, but otherwise the variety of the small towns sparked some of the best conversations and memories. The second half—affectionately known as the, “Are we there yet?” half—was spent on Interstate 35. Outside of beef jerky at Robertson’s, an occasional stop at the Stagecoach Inn, and spotting the Matter-
horn off Exit 279 where Texas Chainsaw Massacre 2 was filmed, this portion of the drive was an endless parade of mile markers, road signs, and nondescript gas stations. Theoretically, this part of the trip should have gone by much faster since traffic was all going the same speed and there were no blinking red stoplights
or small towns to slow you down. However, I-35 in the 1980s and early ‘90s was very much akin to south MoPac during rush hour: It was four total lanes and always under construction, the speed limit was 55 mph, and there was no GPS with real-time traffic conditions. One wreck, traffic stop, or broken-down car would bring everything to a standstill. In other words, this leg made the entire trip feel like it took F-O-RE-V-E-R!!!!! Or about three hours … whichever is longer. Yes, the chronicles of a threehour trip to my grandparents’ house is a poorly veiled metaphor for our collective experiences
over the past two years. To be clear, my intent is not to trivialize the agony of road trips in the ‘80s. I have, however, never felt closer to being eight years old again than I do today. We have survived the hard part: the slow go of the initial stages of the pandemic. Traversing the months like map dots, we heeded the speed traps and honored the speed limits. To bide the time, we took on new hobbies, read books, grew closer to our families, and deepened relationships. We cheered for our first responders, praised our civic leaders, and worked together to continued on page 6
I love LawPay! I’m not sure why I waited so long to get it set up.
+
– Law Firm in Ohio
Member Benefit Provider
Trusted by 50,000 law firms, LawPay is a simple, secure solution that allows you to easily accept credit and eCheck payments online, in person, or through your favorite practice management tools. 22% increase in cash flow with online payments Vetted and approved by all 50 state bars, 70+ local and specialty bars, the ABA, and the ALA 62% of bills sent online are paid in 24 hours
YOUR FIRM LOGO HERE
Trust Payment IOLTA Deposit New Case Reference **** **** **** 9995
***
TOTAL: $1,500.00 POWERED BY
PAY ATTORNEY
Get started at lawpay.com/austinbar 888-491-9328 Data based on an average of firm accounts receivables increases using online billing solutions. LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA, Synovus Bank, Columbus, GA., and Fifth Third Bank, N.A., Cincinnati, OH.
CONTENTS
AUSTINLAWYER FEBRUARY 2022 | VOLUME 31, NUMBER 1 AL A L INSIDE FEATURED ARTICLES
IN EVERY ISSUE
CONNECTIONS
7
11 Third Court of Appeals
ONLINE austinbar.org
10 In Memoriam
12 Third Court of Appeals
EMAIL sonta@austinbar.org
16 Travis County Women Lawyers’ Association
13 Federal Civil Court Update
MAIL Sonta Henderson, Managing Editor Austin Bar Association 712 W. 16th Street Austin, TX 78701
The New Year and Travis County Courts: Townhall Meetings with Travis County Judges Remembering John Pike Powers Honors Women Attorneys
25 Austin Bar Calls for Nominations
We Want You!
26 The Magical Power Of Giving:
Civil Update
Criminal Update
14 Criminal Court News 18 Briefs 22 AYLA
Lawyers and Charitable Adventures
DEPARTMENTS 1
President's Column
8
Be Well
21 Opening Statement
ONLINE
Visit the new Austin Bar Association website at austinbar.org and read Austin Lawyer online at issuu.com/austinbar.
SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar STREAM @AustinBarAssociation
austinbar.org
NEWS & ANNOUNCEMENTS
UPCOMING EVENTS
Join Us for Austin Bar’s Civil District Judicial Forum A members-only moderated discussion with judicial candidates from the 261st, 419th, and 455th courts.
FEB 8 JUN 3
FOLLOW instagram.com/theaustinbar TEXT austinbar to 313131 for up-to-date news + info
Judicial Forum Bench Bar (in-person)
Message & data rates may apply.
RISK-TAKING CAN BE FUN...
…BUT NOT WHEN IT’S A MALPRACTICE CLAIM. Family Law Claim*
• Lawyer sued for losing a child custody case due to alleged inadequate discovery and representation at trial • Damages of up to $500,000 alleged • TLIE successfully defended lawyer at trial INSURED BY TLIE
IF NOT INSURED Defense costs Total out-of-pocket = $0 Settlement Total out-of-pocket * Based on actual claim handled by TLIE.
$67,000 + $0 = $67,000
FIND OUT MORE:
TLIE.ORG or
(512) 480-9074 FEBRUARY 2022 | AUSTINLAWYER
3
AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION
A U S T I N B A R F O U N D AT I O N
GALA
— S AV E T H E D AT E —
april 22, 2022 AUSTIN COUNTRY CLUB
David Courreges ������������������ President Amanda Arriaga ������������������� President-Elect Justice Chari Kelly ��������������� Secretary Mary-Ellen King ������������������� Treasurer Kennon Wooten ������������������ Immediate Past President
AUSTIN YOUNG LAWYERS ASSOCIATION
Rachael K. Jones ������������������ President Blair Leake ����������������������������� President-Elect Sarah Harp ���������������������������� Treasurer Emily Morris �������������������������� Secretary David King ���������������������������� Immediate Past President
Austin Lawyer
©2022 Austin Bar Association; Austin Young Lawyers Association
EXECUTIVE OFFICES
AUSTINBAR.ORG
712 W. 16th Street Austin, TX 78701 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720
Responsive. Experienced. Professional.
DeLaine Ward....................... Executive Director Debbie Kelly.......................... Director of AYLA and Associate Executive Director Sonta Henderson................. Managing Editor Jennifer Hopgood................. Co-Editor Rachael K. Jones................... Co-Editor Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 712 W. 16th Street, Austin, TX 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 712 W. 16th Street, Austin, TX 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors; legislation affecting Austin attorneys; and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District of Texas Federal Court and the Texas Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities.
EMPLOYERS
We deliver a full suite meet the needs of your
INVESTORS & STARTUPS
Now more than ever foreign investors seeking permanent resident status in the U.S. rely on Foster to while they focus on their investment.
INDIVIDUALS & FAMILIES At Foster, we’re proud of our long history of service and advocacy on behalf of individuals and families.
www.fosterglobal.com
AUSTINLAWYER | FEBRUARY 2022
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 above. For editorial guidelines, visit austinbar.org in the “About Us” tab.
PUBLISHED BY
912 S Capital of Texas Hwy, Suite 450
4
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.
Monarch Media & Consulting, Inc. Ph: 512.680.3989 | Fax: 866.328.7199 monarchmediainc.com Advertising inquiries call 512.293.9277.
We Can Do More. CRIMINAL DEFENSE • FAMILY LAW • PERSONAL INJURY
RICK COFER • Criminal and Juvenile Defense • Former Travis County prosecutor • Board Member, Austin Bar Foundation • 90% of felonies dismissed or reduced in 2020 • 87% of misdemeanors dismissed in 2020 • 2021 Rising Star - Super Lawyers • DWI Scholar Award - TCDLA • 100+ Criminal Trials
JEFFREY CONNELLY • Family and Personal Injury • Focusing on complex, high net worth divorce cases: Marital torts, Property tracing, Business valuations • Licensed in Georgia and Texas • Texas Bar College Member • Former prosecutor
BEST LAWYER coferconnelly.com 512-200-3801 602 W 11th Street Austin, TX 78701 |
Cofer & Connelly, PLLC
PRESIDENT'S COLUMN DAVID COURREGES, UNIVERSITY FEDERAL CREDIT UNION
Are We There Yet?
continued from cover
make the best out of a horrible and unimaginable situation. We did not know what the journey would bring, but we all accepted that we were on this road together. What was created was less Windberg and more Rockwell, but it was art, nonetheless. We’re now in the second half
of our trip: the I-35 part. The part where we’re supposed to be moving briskly in the direction of our collective destination toward the promise of something warm and familiar waiting for us at the end: be it a hug from grandma without having to wear a mask, eating in a restaurant without restriction, or even going to the movies. “Normal.” We’ve been supplied seatbelts, we’ve agreed to rules that benefit us all, and most of us are being incredibly careful with our hands at “10 and 2” between 8-track changes and sips of Dr Pepper. It seems, however, that we’re continuously delayed by that series of wrecks, traffic stops, and breakdowns in Williamson County that annoy-
What’s waiting for us when we get there, you ask? Leadership Academy is set to kick off this month; the annual Austin Bar Foundation Gala will be Friday, April 22; Bench Bar is currently scheduled for Friday, June 3; and the Equity Summit will be in late spring. We’re also bringing back Law Day, but with a twist!
6
AUSTINLAWYER | FEBRUARY 2022
The Matterhorn, I-35, Frontage Rd., near Prairie Dell, Texas. Photo by John Margolies, 1982, courtesy of The Library of Congress.
ingly stand in our way. Seriously, “Are we there yet?” The good news is that our metaphorical road trip has finally reached Travis County. We’ve passed the Matterhorn, the old WilCo Courthouse, and the Round Rock Dragons water tower. It’s almost time for some familiarity. What’s waiting for us when we get there, you ask? In addition to a warm hug from grandma, we have several familiar in-person favorites just around the bend! Leadership
Academy is set to kick off this month; the annual Austin Bar Foundation Gala will be Friday, April 22; Bench Bar is currently scheduled for Friday, June 3; and the Equity Summit will be in late spring. We’re also bringing back Law Day, but with a twist! Stay tuned for more information on all these events, and be sure to visit austinbar.org regularly! Yes, we are almost there! I AUSTIN LAWYER can’t wait!!! AL AL
The New Year and Travis County Courts: Townhall Meetings with Travis County Judges Special Event for Austin Bar Association and AYLA Members
MARCH 4 2022 AUSTIN BAR TOWN HALL MEETING:
Returning to the Courthouse CLE credit available RSVP: austinbar.org
A
new year brings new challenges in Travis County. With the Omicron variant spreading, Travis County has moved to Stage 5 in the COVID-19 protocols. The change means courts will continue making the necessary adjustments to ensure proceedings move forward for the judicial community. To keep everyone informed about issues they will face during this stage, the Austin Bar has coordinated a series of townhall-style meetings for its members. The first of these meetings will be held on Friday, March 4, 2022. The objective of the March meeting will be to enlighten Austin Bar members about what to expect in this ever-changing judicial environment. This series of members-only events includes discussions with judges from Travis County civil, family, and criminal courts sharing their expertise about proceedings (live and virtual), filings, and other best practices during this time. The townhall meeting affords Austin Bar members the opportunity to speak directly with judges presiding over their cases. Attendees will be able to choose different breakout rooms in accordance with their area of practice and voice their concerns with questions answered immediately. Participating judges include Judge Amy Clark Meachum,
Judges Crump, Naranjo, Sage, Needles, Mueller, Triana, Kocurek, and Meachum at the 2018 AYLA Judicial Reception.
This series of members-only events includes discussions with judges from Travis County civil, family, and criminal courts sharing their expertise about proceedings (live and virtual), filings, and other best practices during this time. The townhall meeting affords members the opportunity to speak directly with judges presiding over their cases. Judge Lora Livingston, Judge Karin Crump, Judge Maya Guerra Gamble, Judge Catherine Mauzy, Judge Maria Cantú Hexsel, Judge Jessica Mangrum, Judge Aurora Martinez Jones, Judge Eric Shepperd, and Associate Judge Leigh Mathews Rodriguez. According to the Austin Bar’s CLE, Sections, and Events Manager Chase Brunson, the organizing of the events and the incredible support of the County’s judiciary in these meetings
speak volumes about both the commitment of the Austin Bar to keeping its members informed of the current status of local legal proceedings, and the related support of the Austin legal community, particularly the judiciary. Brunson further observed, “Only through the Austin Bar Association or AYLA membership can one get this kind of unparalleled access to Travis County’s presiding judges. We seek and coordinate events like
this because we understand the demands of the job our members face. Things are constantly evolving, and we want to be at the forefront of helping our members and keeping them informed. Anything that makes their work even a tad bit easier is great.” Austin Bar members will earn CLE credit for participating in the meetings. Because these townhall meetings with the Travis County judiciary have proven to be popular (the January townhall meeting was near capacity), members are encouraged to register early. Registration is easy: Simply go to the “CLE & Events” tab on the Austin Bar website and click on the event. During this unprecedented time, offering opportunities to engage with the local judiciary in meaningful—and informative— ways remains a top priority for the Austin Bar. Please register and join your local judges on March 4, 2022! Visit the events page at AUSTIN LAWYER austinbar.org to RSVP. AL AL FEBRUARY 2022 | AUSTINLAWYER
7
BE WELL
Stress, Stress, and More Stress? BY VIRGINIA SAMPSON
O
ur profession is stressful. Our stress can become unmanageable. Substance abuse and alcoholism as coping mechanisms are all too common.
ALL STRESS IS NOT CREATED EQUAL.
Short-term stress is part of our fundamental survival system—the fight-or-flight response—and it may be beneficial for us, according to research conducted at the Stanford Center on Stress and Health. The short-term stress of closing a transaction for a client or litigating a short trial may be beneficial for us. It is the chronic stress that is damaging to our health—both mental and physical. We often go from the stress at the office to stress at home. Chronic stress depresses the immune system and causes inflammation. Inflammation is a root cause of certain cancers and many autoimmune diseases. Mentally, it can lead to anxiety and depression. We are encouraged to get massages, be physically active, pursue hobbies away from the office, or take a vacation. All of these can help us escape the pressures of our professions and daily lives. But these are short-term remedies. As soon as we stop, the stress returns. What if there was a simple, sustainable way to reduce our chronic stress? COMPASSION AND ATTORNEYS: AN OXYMORON?
Researchers at Stanford; University of California, Berkeley; and elsewhere have been studying the effects of compassion on adults. They found that practicing compassion reduces chronic stress. The feelings generated by showing compassion cause us to release oxytocin—the love hormone—into our bodies. Compassion feels good because 8
AUSTINLAWYER | FEBRUARY 2022
it satisfies our biological need to connect to others. Isolation leads to depression and anxiety. Simply put, practicing compassion means assisting someone in need. Practicing self-compassion means recognizing our own distress and comforting ourselves as we would another person. You have a rough day. Perhaps you made a mistake on an important matter for a client or you’ve been less than kind to support staff, a colleague, or even a client. Afterwards you criticize and judge yourself. You may even say unkind things or attack yourself. That behavior creates stress. And if this behavior is chronic, then the result is chronic stress. REDUCE STRESS—SHOW COMPASSION.
Real change only happens when we find solutions outside of our comfort zone. Instead of criticizing yourself if you have made a mistake, do the following: • recognize what you have done and how it makes you feel; • put it in perspective by saying things like everyone makes mistakes; and • offer yourself words of kindness and forgiveness as you would to a friend. When you do this, you are practicing self--compassion. If that is too much to do at the time, simply give yourself a hug. Touch is very healing, in part because it releases oxytocin. Years ago, I was a full-time caregiver to my husband who had ALS. When I was melting down from the demands of caring for him and four young children, I would often give myself a hug. It works! Practicing compassion for others—engaging in acts of kindness to others—has a similar effect. It reduces our stress. Developing a lifestyle of compassion takes commitment. There are simple, science-based practices
will feel happier and be healthier, developed by researchers that can both mentally and physically, and help you do just that. You can evenLAWYER be more successful professtart now by making compassion AUSTIN sionally. AL AL a part of your daily routine. Ask someone at the office how they are and listen to the answer. Open Virginia Sampson is an attorney practicing estate planning, probate, elder law, and the door for another person. Be business law in Austin. She is the author kind to yourself by setting boundof two books about compassion—one aries or not chastising yourself for book for adults and one for children. She your “mistakes.” Make these types also consults with businesses, helping of behaviors habits, and you will them to create cultures where everyone succeeds and thrives. reduce your chronic stress. You
L A W
F
I
R
M
LLP
1101 S. Capital of Texas Hwy Building G, Suite 200 Austin, TX 78746 512.477.5796 | BCLAWTX.COM
New Partner Annoucement From Bollier Ciccone Bollier Ciccone is pleased to announce that Rekha Roarty has been named Partner at the Firm. An award-winning attorney, Rekha joins Tony Ciccone in leading the Civil Law team at BC Law advising clients in a variety of matters across Texas.
2021
Construction Law
Rekha Roarty Family Law | Real Estate | Construction Law | Commercial Litigation
In Memoriam Remembering John Pike Powers
T
he Austin Bar expresses its sincerest condolences to the family of our friend and colleague John Pike Powers, who passed away at the end of October 2021. Powers was a longtime supporter of the Austin Bar and a true luminary in the Austin legal community. After serving in the Texas House of Representatives from 1972 to 1979, Powers accepted the offer to open the Austin office of Fulbright & Jaworski (now Norton Rose Fulbright US LLP). For 26 years, Powers served as the partner-in-charge of the Austin office. When Powers finally became “of counsel” to the firm in 2006, Fulbright’s Austin office had grown to 100 lawyers. For the last 15 years, Powers had served as the co-chair of
Liz Hilton, the executive director for alumni relations and development at the University of Texas School of Law, Powers’s law school alma mater, remembered Powers as “a true visionary who nurtured the people and relationships that are the vehicle of technological innovation.” Emergent Technologies and as a board member of rateGenius, Inc. In its remembrance of Pike, the Austin Business Journal credited Powers as a founding force in Austin’s current tech scene. Liz Hilton, the executive director for alumni relations and
John Pike Powers
development at the University of and dedication to encouragTexas School of Law, Powers’s ing innovation be a source of law school alma mater, rememcomfort, and pride, for Powers’s bered Powers as “a true visionfamily and many friends in our ary who nurtured the people and legal community. We’ll miss you, relationships that are the vehicle AUSTIN LAWYER Pike! of technological innovation.” A L AL May the knowledge of the influence of Powers’s long career
Representing Attorneys
Gaines West
State-wide Practice State Bar of Texas
Grievance Oversight Committee Appointed by the Texas Supreme Court Chair, 2006-2010 Member, 2004-2010
Texas Board of Disciplinary Appeals
Appointed by the Texas Supreme Court Chairman, 2001-2003 Vice Chairman, 1994-1996, 1998-2000 Member, 1992-1996, 1997-2003
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
SAVE THE DATE june 3, 2022
Bench Bar Conference: Emerging from the Pandemic Austin Country Club (with option to attend virtually)
REGISTRATION IS NOW OPEN!
AUSTINBAR.ORG Principal Office – 979.694.7000 1515 Emerald Plaza • College Station, TX 77845
Austin – By Appointment – 512.501.3617 1012 Rio Grande St. • Austin, TX 78701
westwebblaw.com 10
AUSTINLAWYER | FEBRUARY 2022
THIRD COURT OF APPEALS CIVIL UPDATE er’s decision. The court reversed and remanded. APPELLATE PROCEDURE: Court dismisses untimely perfected accelerated appeal. Burns v. City of San Antonio, No. 03-21-00214-CV (Tex. App.— Austin Nov. 18, 2021, no pet. h.) (mem. op.). City filed an expedited declaratory judgment action to adjudicate the validity of its public securities. City served the interested parties by publication; no person answered. The trial court rendered judgment in December 2020 for City. On Feb. 23, 2021, Appellants filed a motion for new trial, which the trial court denied. Appellants filed a notice of appeal on May 5, 2021. The court of appeals noted that an expedited declaratory judgment action is an accelerated appeal. When a motion for new trial is filed more than thirty days after the judgment, the appellate timeline runs from the date the motion is filed. Accordingly, the notice of appeal was due within twenty days (or by a granted extension thirty-five days) after February 23. The court granted City’s motion to dismiss.
>
The following are summaries of selected civil opinions issued by the Third Court of Appeals during November and December 2021. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of Jan. 3, 2022.
ADMINISTRATIVE LAW: Commissioner lacked jurisdiction where district failed to take action on dispute. Lampasas ISD v. Morath, No. 0321-00010-CV (Tex. App.—Austin Nov. 19, 2021, no pet. h.). Landowner Bellpas sought detachment and annexation of its property from LISD to Copperas Cove ISD. CCISD’s board approved Bellpas’s petition; LISD’s board took no action. Education Code §§ 7.057 and 13.051(a) base Commissioner’s jurisdiction on a split decision. Commissioner deemed LISD’s inaction as a denial and granted Bellpas’s petition. The district court affirmed Commissioner’s decision. The court of appeals observed that an appeal to the Commissioner requires one district to disapprove the petition. Commissioner’s determination that inaction triggered jurisdiction lacked support in the statute. Because Bellpas did not receive a decision from LISD, Commissioner lacked jurisdiction. The district court erred in affirming Commission-
TCPA: Court affirms denial of motion to dismiss. Lugo v. Sanchez, No. 03-2100058-CV (Tex. App.—Austin Nov. 12, 2021, no pet. h.) (mem. op.). Client sought to obtain permanent U.S. residency. Lugo
held himself out as an immigration attorney although he was unlicensed. Client relied on the representation and hired Lugo. USCIS denied client’s application. After learning that Lugo was not an attorney, client sued. The trial court denied Lugo’s TCPA motion to dismiss. Lugo argued that TPCA applied to client’s lawsuit because the claims against Lugo were based on Lugo’s exercise of client’s right to petition. The court of appeals concluded that TCPA does not apply unless the defendant shows that plaintiff’s lawsuit implicates defendant’s communications. The court affirmed. The dissent concluded that “communication” need not be done by only one person. Thus, even if the communication was client’s, Lugo made the same communication. TTCA: Court rejects application of emergency-response exception. City of Killeen Police Dept. v. Fonseca, No. 03-19-00898-CV (Tex. App.—Austin Dec. 23, 2021, no pet. h.) (mem. op.). Family sued police department following a collision with an officer involved in a high-speed chase. The trial court overruled department’s plea to the jurisdiction based on immunity. Department contended that immunity was not waived because the emergency-response exception applied. The court of appeals observed
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.
that that the exception applies only if the action is not taken with reckless disregard for the safety of others. The evidence suggested that officer knew or should have known his actions were likely to cause serious injury to others. Officer was driving at twice the posted speed limit on slick roads through a heavy-traffic intersection. Dash-cam video showed officer’s view was almost entirely obscured. The court held that family produced sufficient evidence to create a fact issue on whether officer was reckless and affirmed. The dissent concluded there may be evidence of negligence but AUSTIN there wasLAWYER no evidence officer acted recklessly. AL AL
Helping clients manage significant wealth Matt Rappaport, CFP®, CDFA®, CEPA® Financial Advisor 512-542-7507 matt.rappaport@ubs.com advisors.ubs.com/matt.rappaport
UBS Financial Services Inc. 98 San Jacinto Boulevard Suite 600 Austin, TX 78701
Certified Financial Planner Board of Standards Inc. owns the certification marks CFP® and Certified finanCial PlannerTM in the US. As a firm providing wealth management services to clients, UBS Financial Services Inc. offers investment advisory services in its capacity as an SEC-registered investment adviser and brokerage services in its capacity as an SEC-registered broker-dealer. Investment advisory services and brokerage services are separate and distinct, differ in material ways and are governed by different laws and separate arrangements. It is important that clients understand the ways in which we conduct business, that they carefully read the agreements and disclosures that we provide to them about the products or services we offer. For more information, please review the PDF document at ubs.com/relationshipsummary. © UBS 2021. All rights reserved. UBS Financial Services Inc. is a subsidiary of UBS AG. Member FINRA/SIPC. CJ-UBS-771682841 Exp.: 06/30/2022
FEBRUARY 2022 | AUSTINLAWYER
11
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 cases summarized below are from May and June 2021. Subsequent histories are current as of Jan. 1, 2022.
HABEAS CORPUS – RELEASE DUE TO DISEASE: Convicted felon not entitled to release from prison due to risk from COVID-19. Ex parte Bowlin, No. 03-20-00516CR (Tex. App.—Austin May 4, 2021, no pet.) (mem. op., not designated for publication). Bowlin, an inmate convicted of the felony offense of driving while intoxicated, filed an application for writ of habeas corpus under article 11.25 of the Texas Code of Criminal
Procedure, which provides that when “a person in legal custody is afflicted with a disease which will render a removal necessary for the preservation of life, an order may be made for the removal of the prisoner to some other place where his health will not be likely to suffer.” Bowlin argued that “[d] ue to the dangers of the spread of the novel coronavirus creating the disease of COVID-19,” “the near-impossibility of social distancing in prisons and air quality control in prison settings,” and his having “heightened vulnerabilities to that pandemic disease,” it was “necessary for his safety that [he] be released to a facility which can protect him from the risk of death from COVID-19.” The trial court denied relief, and the appellate court affirmed. The court concluded that it was bound to follow precedent from the Court of Criminal Appeals, which had held repeatedly that, regardless of the circumstances, article 11.25 “does not contemplate a release after conviction of a felony.” EVIDENCE ADMISSIBILITY – ELECTRONIC COMMUNICATIONS: Trial court did not abuse its discretion in excluding Facebook message purporting to be from State’s witness accepting responsibility for crime. Walcott v. State, No. 03-20-00124CR (Tex. App.—Austin May 21, 2021, pet. ref’d) (mem. op., not designated for publication). Walcott was convicted of capital mur-
Mediation. Arbitration. Resolution.
der. One of the State’s witnesses at trial claimed to have observed the victim being killed. In a hearing outside the presence of the jury, the victim’s mother testified that she had received a Facebook message from someone identifying herself as this witness. In the message, this person confessed to killing the victim. Walcott sought to admit the contents of this message as a “prior inconsistent statement” of the witness, but the State objected, arguing that Walcott had failed to properly authenticate the message. The district court sustained the objection. The appellate court affirmed. The court explained that to authenticate an electronic communication, more is required than the message purporting to originate from a person’s social-media account. “Other evidence of authenticity is required, such as internal similarities between the purported message and other verified messages of the author, unique speech and writing patterns used by the purported author, and the inclusion of information that only the purported author would know.” Walcott failed to provide any such evidence in this case. EVIDENTIARY SUFFICIENCY – TAKING WEAPON FROM PEACE OFFICER: Evidence was sufficient to prove that defendant took weapon from officer even though officer did not know how defendant obtained weapon.
Fenderson v. State, No. 03-2000161-CR (Tex. App.—Austin June 3, 2021, no pet.) (mem. op., not designated for publication). During a traffic stop, Fenderson ran away from police officers, who gave chase and tackled Fenderson to the ground. During the ensuing scuffle, Fenderson came into possession of a Taser belonging to one of the officers, and he used it on an officer at the scene. The officers did not know how Fenderson had obtained the weapon. Fenderson was charged with and convicted of the offense of taking a weapon from a peace officer. On appeal, he challenged the sufficiency of the evidence, contending that the evidence was insufficient to prove that he “intentionally or knowingly and with force” took the Taser from the officer. Fenderson argued that the evidence showed instead that he merely “ended up with the Taser after it was dropped or came out of the officer’s holster.” The appellate court disagreed, observing that the factfinder could have reasonably inferred from Fenderson’s actions that he had forcefully dislodged the weapon from the officer’s possession in his efforts to resist arrest. The court further concluded that Fenderson’s intent to take the weapon from the officer could be inferred from the circumstances of the offense, including that when he obtained the Taser, rather than letting it go as one of the officers instructed him toLAWYER do, Fenderson AUSTIN AL AL used it on the officer.
Jeff Rose Mediation Arbitration Litigation Consulting Special Judge Proceedings Board Certified, Civil Trial Law Former: Chief Justice, 3rd Court of Appeals; District Judge; Deputy Attorney General
ROSERESOLUTIONGROUP.COM jeff@roseresolutiongroup.com 512.637.0931
12
AUSTINLAWYER | FEBRUARY 2022
Certified Mediator: Harvard Negotiation Program; Mediators and Arbitrators of America TEXAS SUPER LAWYER 2004, 2005, 2008, 2009
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. ARBITRATION: In determining whether federal district court would otherwise have jurisdiction over suit arising out “of the controversy between the parties” for purposes of a petition to compel arbitration under § 4 of the Federal Arbitration Act, court considers only diversity of parties to the petition to compel arbitration.
ADT, L.L.C. v. Richmond, 18 F.4th 149 (5th Cir. 2021). Aviles worked for ADT, installing security systems in customers’ homes. Aviles began spying on customers using the cameras he had installed. Richmond and her family were among those customers. The Richmonds, who are citizens of Texas, brought suit in Texas state court on purely state-law claims against Aviles, who is also a Texas citizen, and ADT, a citizen of Delaware and Florida. Citing an arbitration clause in their contract with ADT, the Richmonds filed a petition to compel arbitration in federal district court, arguing that the court had diversity jurisdiction because the parties to the arbitration agreement (and, thus, the petition to compel arbitration)—the Richmonds and ADT—were citizens of different states. The district court dismissed ADT’s suit for want of diversity jurisdiction. Section 4 of the Federal Arbitration Act (FAA) authorizes federal courts to enforce an arbitration agreement only if they would have subject matter jurisdiction, “save for [the arbitration] agreement,” over “a suit arising out of the controversy between the parties.” In Vaden v. Discovery Bank, 556 U.S. 49 (2009), the Supreme Court held that a feder-
al court may “look through” a petition to compel arbitration and examine state court pleadings to determine if the underlying controversy arises under federal law. Purporting to apply a similar type of look-through analysis in the diversity context, the district court concluded that the Richmonds’ underlying suit was not just against ADT but also against Aviles. And because Aviles is a citizen of Texas, the district court ruled that complete diversity between the parties was lacking. On appeal, the Fifth Circuit reversed and held that the district court had subject matter jurisdiction. The majority reasoned that while Vaden focused on the meaning of the term controversy in § 4, the question in this case centered on the term parties. Based on an analysis of the statutory text, the majority concluded that parties refers only to the parties to the § 4 petition, not all parties to the underlying suit. Thus, Aviles’s Texas citizenship was irrelevant to determining the diversity of the parties for purposes of § 4. The court noted, however, that diversity jurisdiction might nevertheless be improper if Aviles is an indispensable party, and the court instructed the district court to consider that issue on remand. In a concurring opinion, Judge Haynes explained that she concurred in the judgment but would arrive at the result by a shorter road: holding that the “look-through” test of Vaden does not apply to diversity cases. LABOR AND EMPLOYMENT: Supervisor’s knowledge of OSHA violation committed by employee was imputed to company. Angel Bros. Enterprises, Ltd. v. Walsh, 18 F.4th 827 (5th Cir. 2021). Angel Brothers Enterprises was cited by OSHA because an employee was doing excavation work in a trench that lacked cave-in protection. The Angel
Brothers crew had adequate protection for the first two days of the project. But starting on the third day, the work was too close to a nearby street to continue using the safety measures employed the first two days. Instead, a device called a trench box would need to be used to guard against cave-ins. So, Angel Brothers’s safety manager told the foreman that the crew would need to start using a trench box, but the foreman did not follow those instructions and instead allowed a crewmember to enter the excavation site despite the lack of a trench box. An OSHA compliance officer happened to be on site and cited Angel Brothers for failure to use adequate protection against cave-ins. An administrative law judge and the Occupational Safety and Health Review Commission affirmed the citation and deemed the violation to be willful, resulting in a $35,000 penalty. Angel Brothers petitioned the Fifth Circuit to overturn the Commission’s finding of willfulness, which rested on imputing the supervisor’s knowledge of the violation to the company. Angel Brothers argued that the supervisor’s knowledge of the violation could not be imputed to the company because, under W.G. Yates & Sons Const. Co. v. OSHRC, 459 F.3d 604 (5th Cir. 2006), when a supervisor’s own conduct is the OSHA violation, the supervisor’s knowledge is not imputed unless the misconduct was foreseeable. Angel Brothers contended that Yates applied because the violation involved its supervisor’s malfeasance, i.e., authorizing the crewmember to work in the trench despite contrary instructions from the safety coordinator. The Fifth Circuit disagreed, holding that Yates did not apply because the supervisor’s conduct was not the violation. Rather, the violation was the crewmember’s presence in the excavation site without adequate cave-in protection.
David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico.
The court reasoned that just because a supervisor authorizes or takes some active role in a subordinate’s violation does not transform the subordinate’s violation into one committed by the supervisor for purposes of AUSTIN LAWYER the Yates exception. AL AL
FEBRUARY 2022 | AUSTINLAWYER
13
CRIMINAL COURT NEWS
How Many Crimes Make a “Crime Spree”? 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.
T
he U.S. Supreme Court heard arguments in October 2021 in a case that involves the question of whether a series of crimes committed in one episode should be considered one crime for the purpose of sentencing enhancement under the federal Armed Career Criminal Act (ACCA).2 In Wooden v. United States,1 the Court accepted a writ of certiorari to answer the question of whether entering a storage facility and breaking into 10 different storage units should be
The issue presented to the Supreme Court is whether offenses that were committed as part of a single criminal episode, but sequentially in time, would be considered “committed on occasions different from one another.” considered 10 separate convictions. Specifically, under ACCA’s sentencing enhancement requires proof of three prior “crimes of violence.” The issue presented to the Supreme Court is whether offenses that were committed as part of a single criminal episode, but sequentially in time, would be considered “committed on occasions different from one another.” If the Court were to hold that the crimes were separate, the punishment range for Wooden’s sentencing would be increased from a suggested 21-27 months to a mandatory minimum of 15 years. Central to the case was the parties’ differing interpretation of the ACCA’s use of the term “committed on occasions different from one another.”3 This statutory language, the defen-
dant argued, means that the 10 separate storage-unit burglaries should be considered one single offense because the burglaries were committed on the same premises and at the same time. The Sixth Circuit disagreed, holding that because the defendant could have stopped after one unit was burglarized and instead continued entering the units until reaching 10 storage units. Wooden, in essence, committed 10 separate offenses, and each breach was its own occasion.4 During oral arguments, counsel for Wooden commented that the hypotheticals generated by this odd set of facts reminded him of a law-school exam, and the justices peppered counsel for both parties with scenarios such as a series of crimes committed while a streetlight was out, on a
dark and moonless night, and if taking a smoke break between crimes could create more than one separate occasion.5 The justices noted that the government had confessed error and allowed a court to vacate a prior ACCA sentence which was enhanced by six robbery convictions which arose from the robbery of a diner, and that taking such a position undercut the State’s argument in this case.6 In Wooden’s petition, his lawyers noted that if any doubt existed about how to read the “occasions” clause, “the rule of lenity breaks the tie in Mr. Wooden’s favor.”7 A decision in the AUSTIN LAWYER L AL case is expected later thisAyear. Footnotes 1. 2. 3. 4.
No. 20-5279. 18 U.S.C. § 924(e)(1). Id. See United States v. Wooden, 935 F.3d 498 (6th Cir. 2019). 5. Daniel Harawa, A hypothetical-filled argument proves how tricky it is to define an “occasion,” SCOTUSblog (Oct. 5, 2021), https://www. scotusblog.com/2021/10/ahypothetical-filled-argument-proveshow-tricky-it-is-to-define-anoccasion/. 6. Id. 7. Pet.’s Brief at 11.
You’re busy looking out for your clients’ needs. Who’s looking out for yours? Jim Kaighin, Jr., CFP Financial Professional
3500 Oakmont Blvd., Suite 101 Austin, TX 78731
512-302-6051 kaighinjr@hilltopnetwork.com Member: FINRA/SIPC 14
AUSTINLAWYER | FEBRUARY 2022
Paralegal Certificate Programs Invest in your staff with online training from UT Austin. Essential Skills • Torts • Contracts • Texas Rules of Civil Procedure Attend a free information session or watch on-demand now. Contact Brett at 512-471-2924 or visit professionaled.utexas.edu/paralegal
Appeals and Trial Court Support
www.LaurieRatliffLaw.com 512-422-3946 laurie@laurieratlifflaw.com FEBRUARY 2022 | AUSTINLAWYER
15
Travis County Women Lawyers’ Association Honors Women Attorneys 22nd Annual Pathfinder Awards Luncheon Held in January Austin City Council; first Latina mayor pro tem of the City of Austin; and, most recently, the first Latina Travis County Attorney. Garza related the influence her father, a firefighter in San Antonio, had on her becoming a firefighter in Austin. Garza then attended law school so she could
TCWLA Pathfinders are role models— local women with law degrees who are using, and have used, their degrees in a variety of ways and who represent a diversity of life and work experiences.
Jennifer Hopgood is the TCWLA President for the 2021-22 term and an Assistant County Attorney with Travis County.
O
n Jan. 25, 2022, the Travis County Women Lawyers’ Association (TCWLA) hosted its 22nd Annual Pathfinder Awards presentation, this year virtually, to three Austin-area attorneys: Delia Garza, Travis County Attorney; Yvonne Puig, chief integration partner, life sciences and healthcare, Norton Rose Fulbright US LLP; and Kathy Richardson, founder and principal, of HR Legal Search. TCWLA is committed to recognizing trailblazing women attorneys. TCWLA Pathfinders are role models—local women with law degrees who are using, and have used, their degrees in a variety of ways and who represent a diversity of life and work experiences. This year’s three winners spoke movingly of their careers and achievements, and the program was thought-provoking and inspirational. Congratulations to the TCWLA 2022 Pathfinders!
Delia Garza Delia Garza was elected the Travis County Attorney in November 2020. Garza’s career has been a series of firsts: first Latina on the 16
AUSTINLAWYER | FEBRUARY 2022
Delia Garza
better facilitate changes in the legal system. Garza told the audience that when we change systems and structures (social, political, and economic), we can make true changes for all of society.
Yvonne Puig
Yvonne Puig is the chief integration partner in the life sciences and healthcare practice section at Norton Rose Fulbright US LLP. Puig is also a founding member of the Center for Women in the Law at the University of Texas School of Law, the law school from which she graduated in 1978. Puig emphasized to the audience that rather than focusing on having been one of the few women in leadership early on in her career, she focuses on the present and future, on how she can be an effective and inspiring leader of a diverse team of legal professionals.
Kathy Richardson Kathy Richardson is the founder and principal of HR Legal Search, an Austin-based re-
Yvonne Puig
cruiting firm. When an undergraduate at American University, Richardson thought she might become a career counselor. So, after deciding to attend law school and upon graduation from the University of Texas School of Law, Richardson decided to stay on in the law school’s career services office and help law students find the best-suited positions in their nascent careers. After six years in charge of the office as the Assistant Dean for Career Services, Richardson pivoted to private recruiting of attorneys. After founding the Austin office of a national recruiting firm, she founded her own recruiting firm. Richardson has placed hundreds of attorneys throughout her career. Richardson shared that she recently transitioned her professional focus, helping individuals create a moreLAWYER satisfying AUSTIN AL AL life beyond career goals.
Kathy Richardson
TCWLA’s Mission • Foster communication among women lawyers. • Strengthen the image and position of women lawyers in the community. • Work toward the elimination of gender bias. • Inform the public about legal issues affecting women. • Work toward the enhancement of the public perception of the legal profession.
recent results
$389 MILLION
$67M, $60M, $54.7M, & $50 MILLION
BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Andrew Albright Scott Baker Bo Balagia
ABOVE: (from left) Arriaga, Herzog, Jackson, and Garza-Kilcullen
Jessica Blake Alexis Blekas Seth Boettcher Dana Brodsky Michael Burns Andrea Dargin Paul DeMuro Jason Flaherty Marie Galindo Alberto Garcia James Haecker Sylvia Herrera Mark Hopkins Tanisa Jeffers Ashley Kuempel Sean McCormick Rachel Ochoa Katie Oldham Clint Parsley Heath Pennington Cristina Ramirez
ON THE MOVE Amanda Arriaga was selected as General Counsel and Chief External Relations Officer at Texas CASA. She previously served in various roles in state government since 2004. Arriaga is also president of the Austin Bar Association for 2022-23.
Alec Herzog joined Ruffner Schoenbaum Murphy Banaszak, PLLC as a senior associate in the firm’s business transactions practice. Herzog serves his clients as an advisor in entity formation; corporate compliance; asset and equity transfers; borrowing and lending transactions; and commercial contract drafting, review, and negotiation.
Jenny Settle Jackson joined Ruffner Schoenbaum Murphy Banaszak, PLLC as a partner, focusing on the firm’s commercial litigation practice. Jackson spent most of her legal career with the Office of the Attorney General, most recently as Chief of the Consumer Protection Division. Jackson adds additional expertise in administrative disputes and appeals to the firm’s litigation practice. Carlotta Garza-Kilcullen, a recent graduate from University of Texas School of Law, joined Ruffner Schoenbaum Murphy Banaszak, PLLC, focusing on the firm’s estate planning and probate practice.
Jean Raveney Ana Schwartz Julie Searle Ammad Waheed Keri Ward Travis Weaver Nickie Yee
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.
Patrick
Keel
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.
Mediator Arbitrator
Former District Judge
patrickkeel.com Available by video and in person.
18
AUSTINLAWYER | FEBRUARY 2022
Senior District Judge
L A W
F
I
R
M
LLP
1101 S. Capital of Texas Hwy Building G, Suite 200 Austin, TX 78746 512.477.5796 | BCLAWTX.COM
Stephen Yelenosky
New Partner Announcement From Bollier Ciccone Bollier Ciccone is proud to welcome Susannah A. Stinson as a Partner in the Firm. Susannah is Board Certified in Family Law and is a well-known and respected attorney in Central Texas with extensive experience litigating and negotiating family law matters. She joins Leslie Bollier and the rest of the Family Law team at BC Law, serving the needs of high net-worth individuals working through complex divorce proceedings.
Susannah A. Stinson Family Law | Real Estate | Construction Law | Commercial Litigation
Mediator, Arbitrator, Special Judge and Litigation Consultant
syelenosky.com 512-444-2226 sy@syelenosky.com
Arielle Rosvall
FEBRUARY 2022 | AUSTINLAWYER
19
MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS
2016-PRESENT
Ken Davison Greg Bourgeois Eric Galton David Moore Kim Kovach Fred Hawkins Ben Cunningham Lynn Rubinett Lucious Bunton
20
AUSTINLAWYER | FEBRUARY 2022
OPENING STATEMENT
Literary References Their Use by Judges BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET
T
his column reports on research into the use of literary references and allusions by judges in judicial opinions. The research was done by Professor Kristin B. Gerdy Kyle and reported in her article, Big Brother, Othello, and Dogs that Don’t Bark: The Use of Literary Allusion in Federal Appellate Opinions.1 First the background, then the research and results. THE RESEARCH Relying on lists of the most significant literary works, authors, characters, and settings from the 1800s to the 2000s, Professor Kyle searched Lexis and Westlaw databases of federal appellate opinions from 1997 to 2012. She found 470 federal appellate opinions using literary references during the 15-year period. She recognized judicial writers were using the literary references and allusions in four broad ways: factual comparisons of the case’s circumstances or parties to literary circumstances or characters; borrowed eloquence—using a literary reference for variation, reader engagement, and rhetorical force; thematic introductions, which open opinions and set a tone or theme for the analysis; and as support for legal reasoning.2 THE RESULTS One hundred sixty-seven federal appellate judges and justices used literary references during the period, with the top three users being Judge Bruce Selya of the First Circuit, Judge Sidney R. Thomas of the Ninth Circuit, and Justice Antonin Scalia of the Supreme Court. The most frequently cited authors, in order, will not surprise anyone: • William Shakespeare (26
• • • • •
different plays) George Orwell Sir Arthur Conan Doyle Charles Dickens Franz Kafka Lewis Carroll3
And here are the six most frequently mentioned characters and settings, in order: • Sherlock Holmes • the case of Jarndyce v. Jarndyce in Dickens’s Bleak House • the scarlet letter from Nathaniel Hawthorne’s novel of that name • Lewis Carroll’s Wonderland • The fairytale character Goldilocks • George Orwell’s Big Brother4 The literary authors (68) referenced in the judicial opinions are a who’s who of writers, both classic and popular.5 Besides those named above, here are some of my favorites: Agatha Christie, William Faulkner, Herman Melville, Edgar Allan Poe, J.K. Rowling, Dr. Seuss, Upton Sinclair, and Voltaire. SHOULD JUDGES USE LITERARY REFERENCES? Professor Kyle rightly notes that judges may hesitate to use literary allusion in judicial opinions. Why? Three key reasons: Using literary allusion may seem to flaunt the writer’s superior knowledge—never an inviting technique for readers. In addition, their use may alienate a portion of the audience that does not understand the allusion. And some readers opine literary allusions are too trivial and frivolous for serious endeavors like judicial-opinion writing.6 Still, the practice has its defenders, among whom is the legal-writing expert Bryan Garner, who says that literary allusions, “‘if not too arcane, can add
One hundred sixty-seven federal appellate judges and justices used literary references during the 15-year period, with the top three users being Judge Bruce Selya of the First Circuit, Judge Sidney R. Thomas of the Ninth Circuit, and Justice Antonin Scalia of the Supreme Court. substantially to the subtlety and effectiveness of writing.’”7 Another was the renowned legal scholar Charles Alan Wright, who argued that literary allusions make the written work more interesting, as long as “‘their basic thrust [would] be understood even by readers who are not familiar with [the underlying literary text].’”8 Does the same advice apply to practitioner writing? Maybe. However, judicial writing differs from practitioner writing in one main way: Although judges may desire to persuade their readers, they are ultimately announcing a decision, whereas practitioners are engaged almost entirely in persuasion. Next month I’ll report on research into literary references in
appellate briefs and offer advice AUSTIN LAWYER L AL and commentary on theirAuse. Footnotes 1. 2020 S. Cal. Interdisciplinary L.J. 427 (2020). 2. Id. at 440-51. 3. Id. at 440-41. 4. Id. at 441 n.108. 5. Id. at 454-55 (Appendix A). 6. Id. at 437-38. 7. Id. at 438 (citing Bryan A. Garner, A Dictionary of Modern Legal Usage 342 (2d ed. 2012). 8. Id. at 437 (citing Charles Alan Wright, Literary Allusion in Legal Writing: The Haynesworth-Wright Letters, Scribes J. Legal Writing 1, 1 (1990).
FEBRUARY 2022 | AUSTINLAWYER
21
AUSTIN YOUNG LAWYERS ASSOCIATION
AY LA GUEST COLUMN BLAIR LEAKE, WRIGHT & GREENHILL, P.C.
AYLA Is a Pillar of the Austin Legal Community But Only As Long As the Austin Legal Community Actively Engages
T
hink back to the first time you went to a legal event—freshly licensed and unsure of your place in the world–and walked into a room full of carousing attorneys. Either you did not know a soul, or at best you latched onto the one or two persons you did know and followed them around like a duckling in tow. Think back to the first time you walked into a courtroom and were so green as to not even know where to sit, much less the names of the attorneys, bailiffs, and clerks bantering all around you. For most of us, those were awkward days. One group—the Austin Young Lawyers Association (AYLA)—has for decades helped make that awkward transition for our newest attorneys far more palatable for them, and far more constructive for the rest of
us. By collectively being engaged with and supportive of AYLA, we as a legal community have long created both inertia and opportunities to actively assimilate new attorneys into our city’s cooperative legal culture, consequently helping to ward off the cutthroat, unyielding legal cultures prevalent in some of our state’s largest cities. Nothing greases the wheels of a Rule 11 extension request quite like rapport. For at least 30 years, AYLA has fostered and accelerated attorney rapport and fraternity through hosting monthly and yearly events. These events allow new attorneys to bond with other new attorneys as peers, and to learn from seasoned attorneys as mentors and role models. The organization itself has also served as an incubator by carving out a place for young attorneys to not just participate but also to actually lead and run an entire organization. AYLA thus functions as a de facto farm league developing and building a bench of local attorneys ready to take on leadership roles within our community, whether it be in
UPCOMING EVENTS THURSDAY, FEB. 17, 2022 AYLA Docket Call 5:30 – 7 p.m. Star Bar, 600 W. 6th St Sponsored by: Kim Tindall & Associates Visit ayla.org for a complete list of events and updates. 22
AUSTINLAWYER | FEBRUARY 2022
By collectively being engaged with and supportive of AYLA, we as a legal community have long created both inertia and opportunities to actively assimilate new attorneys into our city’s cooperative legal culture, consequently helping to ward off the cutthroat, unyielding legal cultures prevalent in some of our state’s largest cities. a legal capacity or otherwise. The entire construct that is AYLA—and the benefits it has long provided us—will fall apart, however, if we as a legal community let it. Money is important, but nothing like a lack of engagement will kill it quite as fast. AYLA has for almost two years now been forced to postpone and fundamentally alter most of its events, and—if we are being honest—those alterations have rarely been for the better. War story punchlines just never seem to land the same when delivered over Zoom. Despite Omicron-induced delays and frustrations, AYLA’s stable of monthly and yearly social events stands on the precipice of beginning again in full force for the first time in almost two years. Now is the time for you to recon-
nect and reengage. Attend Bench Bar. Start a conversation with a new attorney at a Docket Call happy hour. Sign up for a volunteer shift at a monthly Community Service Days event. Eat barbecue at an AYLA tailgate. Run for a position on the AYLA board or encourage young attorneys you know to do so. Whatever you do, do your part to make sure that the various pillars of our legal community that have helped shape it do not diminish, lestAUSTIN the culture we have LAWYER built and enjoy followAsuit. L AL
AUSTIN YOUNG LAWYERS ASSOCIATION
AYLA Member Spotlight: Jackie Navarro
Jackie Navarro is an attorney in the Austin office of the Texas Commission on Environmental Quality (TCEQ) and a graduate of St. Mary’s University School of Law.
AYLA: Tell us a little bit about yourself and your law practice. Navarro: I was born and raised in Los Angeles, California. I
attended the University of California, Berkeley for undergraduate and received my B.A. in Legal Studies and Social Welfare. I received my J.D. from St. Mary’s University School of Law in May of 2020 and was admitted to the Texas Bar in December of 2020. While in law school, I participated in the Consumer Protection Clinic at the Center for Legal and Social Justice at St. Mary’s University. I practice administrative and public law. I currently work for the Texas Commission on Environmental Quality (TCEQ) in the General Law Division. TCEQ is a state agency with a central office in Austin and 16 regional offices throughout Texas. AYLA: How long have you been involved in AYLA and what has been your best AYLA experience so far? Navarro: I joined AYLA in October of 2021, and it has been an amazing experience. AYLA has hosted several events for
My best AYLA experience thus far was volunteering for the Holiday Program and wrapping gifts. It was a rewarding experience to witness parents select toys for their child and know that many children will have gifts to open on Christmas day. I look forward to volunteering again this year. Navarro: Get involved and volunteer for causes you are passionate about, regardless of whether the causes are lawrelated. It is a great way to give back and to meet others with similar interests. Many times, you will find other attorneys at the events. Traditional networking events are not for everyone, and volunteering can be a form of networking that will you meet attorneys in your AYLA: What’s your best pieceAUSTINhelp LAWYER A L AL area. of advice for fellow young attorneys?
members to gather and network. My best AYLA experience thus far was volunteering for the Holiday Program and wrapping gifts. It was a rewarding experience to witness parents select toys for their children and know that these many children will have gifts to open on Christmas day. I look forward to volunteering again this year.
AYLA Seeks Board Members for 2022-23 Ready to Seize Your Day?!
T
he Austin Young Lawyers Association (AYLA) is seeking attorneys interested in serving on its board of directors for the 2022 - 23 bar year. Serving on the AYLA board is not only a great way to give back but also the best possible way to gain the most from being involved in the organization. To be eligible for a board position, a candidate must be a current AYLA member and be 40 years of age or younger as of July 1, 2022. To be placed on the ballot, submit a nomination form signed by 10 current AYLA
MARCH 4 2022-23 AYLA BOARD OF DIRECTORS NOMINATIONS DUE Questions? Email: debbie@austinbar.org
members to Debbie Kelly at debbie@austinbar.org by March 4, 2022. Nomination forms and additional information can be found online at ayla.org. Join us for the professional AUSTINadventure LAWYER you’ve been waitingALfor! AL FEBRUARY 2022 | AUSTINLAWYER
23
AUSTIN YOUNG LAWYERS ASSOCIATION
AYLA Tailgate for a Cause
THANK YOU SPONSORS
Event Raised Funds to Benefit 200 Austin Children
SATURDAY | NOVEMBER 13 UT VS KANSAS
BENEFITTING THE YMCA HOLIDAY TOY DRIVE
Floyd Real Estate Howry Breen & Herman
Sandoval & James Selman Munson & Lerner
The Tomlinson Firm, PLLC Fawn Crosby, Texas Loan Experts Germer Beaman & Brown Franklin Hopkins Husch Blackwell
Leslie Boykin for Cty Court at Law #6 Dawson Law, LLP Guevara Law Lyttle Law Firm, PLLC Thompson Law The Morris Law Firm Laurie Eiserloh
Ben E. Keith Treaty Oak Distilling Waterloo Sparkling Water Mary House, Realtor Tex-Ex Tailgate
TOP PHOTO: Lance, Mesia, and Laura Sharp; Rudy Metayer; Sara Foskitt; and Dave Floyd. BOTTOM LEFT: Debbie Kelly; Morgan Shell; and Ciara Parks and her children. BOTTOM RIGHT: Blair and Erin Leake; and Sarah Harp.
T
he Austin Young Lawyers Association Foundation hosted a fundraiser tailgate at the University of Texas vs. Kansas football game on Saturday, Nov.
13, 2021. Fans of both teams joined in the fun. Admission into the tailgate was a suggested $20 donation per person. The tailgate raised funds and awareness to benefit AYLA’s
community holiday event for underprivileged families, which was held on Dec. 12, 2021. AYLA partnered with the YMCA again this year to provide toys for 200 children. Thank you
to our tailgate committee, and special thanks to Mary House for providing homemade food for our event. This event would not have been possible without our AUSTIN LAWYER AL AL generous sponsors.
Divorce and Child Custody Surveillance ~ Undercover Background Checks Computer & Phone Forensics Corporate Investigations Expert Testimony and more “Information is power, the not knowing is devastating.” 24
AUSTINLAWYER | FEBRUARY 2022
Anji Maddox
Featured in Forbes Magazine
STRICTLY CONFIDENTIAL Offices in Austin, Round Rock and Dallas
Austin Bar Calls for Nominations We Want You!
A
re you a dynamic leader? Enthusiastic about community engagement? Interested in issues affecting the judicial community? If so, we want you! The Austin Bar is seeking nominations to serve on its board for the 2022-23 term. Why serve on the Austin Bar board? The Austin Bar has a proven history of dedicated service to the judicial community in Austin, Travis County, and
surrounding areas. The Austin Bar spends a considerable time supporting local nonprofits to providing legal and general support. From our board of directors to section and committee leaders, lawyers have many ways to share their expertise as well as learn best practices from an organizational standpoint. As a member of the Austin Bar, board members are able to have a direct impact in supporting legal support initiatives and
make a true difference in our community. Director positions are two years; officer positions are one year. Nominees for the office of president-elect must have served at least two years on the board of directors prior to assuming office. Decisions made by the Nominating Committee will be announced on or before Tuesday, March 15. The number of candidates nominated for a position is solely
LAW FIRM, P.C. FAMILY LAW
We understand. We can help.
We’re Here. We’re Open. We’re Ready to Help. Video Conferencing and In-person Social Distancing Now Available
Divorce
Custody
Same-Sex Marriage Mediations
Appeals
Modifications
Arbitrations
A Client-Centered Approach to Family Law
Attorney Erin Leake
Board-Certified in Family Law by the Texas Board of Legal Specialization
Attorney Jimmy Vaught,
Board-Certified in Family Law and Civil Appellate Law by the Texas Board of Legal Specialization
AustinDivorceLawyer.com
FEB 25 AUSTIN BAR ASSOCIATION NOMINATIONS FOR 20222023 BOARD SERVICE DUE Ready to lead?
Email: delaine@austinbar.org
the discretion of the majority of the Nominating Committee. Any qualified member not receiving a nomination by the committee may submit a petition signed by 75 members of the Austin Bar to be included on the ballot. The Austin Bar must receive petitions by Friday, April 8. If you are interested in running for a position as a director or officer, send your résumé indicating your desired position by Friday, Feb. 25 to the following address: Austin Bar Association. Attn: Nominating Committee, 712 W. 16th St., Austin, TX 78701. You may also email your résumé to Austin Bar Executive Director DeLaine Ward at delaine@austinbar.org. Once nominations are secure, voting by electronic ballot will follow. If you have questions about the nominations or election process, contact DeLaine Ward at delaine@austinbar.org. JoinAUSTIN us for a prosperous LAWYER and impactful 2022-23! AL AL
Attorney Jillian French
Board-Certified in Family Law by the Texas Board of Legal Specialization
512.605.0999 FEBRUARY 2022 | AUSTINLAWYER
25
The Magical Power Of Giving: Lawyers and Charitable Adventures BY LAURA S. FOWLER Almost always, the charitable deeds I did, the charitable gifts I made, were rewarded in magical ways I never could have anticipated. Why? Because if the mission of the charity I chose was something I believed in and charitable leadership ran the charity in a responsible way, the magical benefits were inevitable. Nevertheless, my words are a cautionary tale about involvement in charitable outreach as a citizen and as a licensed attorney. Laura Fowler has practiced actively in Austin for 43 years, managing The Fowler Law Firm PC. In 2016, Fowler founded the ‘Still Loving It Lawyers Club®’ as the 24th practice section of the Austin Bar Association, to encourage and inspire lawyers of every age to rejoice in their practice and continue lifelong service to others.
I
t is because I strongly believe a law license empowers its holder to truly make a difference, I share these words with you. If we were given the gift of being smart enough to become licensed attorneys, we need to give generously to others. One of the best ways a lawyer can do this is by associating with well-run charitable associations who offer a platform to do more and give more.
CHOOSE YOUR CHARITY WITH A PURE HEART Because charitable service is just as demanding as any other type of client representation, often requiring far more time, energy, and commitment without direct remuneration, chose charities whose missions matters to you. Say “NO” to the ones that do not inspire you, even if they are the largest or most well-respected charities operating in your community. Choosing a charity only because you think it will enhance your practice is likely to be an exercise in pure torture. KNOW YOUR CHARITY AND ITS MISSION You should not associate with any charity or nonprofit organization until you answer the following questions. Your author is often
PATIENT
surprised to discover the leadership of the charity or nonprofit organization, the president and executive officers, cannot answer the following questions correctly: • What is the legal name of the charity or nonprofit organization? • What is its IRS designation and federal tax-exempt status? • What is the state franchise, sales tax, and local ad valorem tax exempt status? • Is it the affiliate of a state, national, international, or other larger entity? • What do the bylaws or other organizational documents of the charitable association authorize it to do? • Who and what have access to funds, particularly funds that are charitable donations to the organization? There are many reasons why you should know these facts before you associate with a charitable organization, particularly one which solicits funds from individuals. KNOW YOUR STATE LAW CHARITABLE IMMUNITIES, LIABILITIES, AND DEFENSES The protections afforded to charitable organizations differ dramatically from one mission and one state to another. You should carefully
PRACTICAL
review what charitable immunities and defenses apply and what insurance coverage will afford the best protections to the board members, employees, and volunteers.1 One of the most common reasons any charitable entity is sued is because of a mishap involving an automobile. A volunteer, an employee, or a board member injured someone or damaged property while operating a motor vehicle in the scope and course of the charitable association’s mission.2 Inquire of your charitable organization who is authorized to operate a motor vehicle to perform charitable functions. Ask what insurance is carried by the charity. If the answer is “none,” ask your personal auto liability insurance policy issuer if you are covered for volunteer missions. This is a type of add-on coverage that typically does not cost anything to add. WHAT WILL YOUR ROLE BE? I have left the most important question for last. Whether you chose to serve as pro bono legal counsel or governing board member, or both, you should carefully explain to other board members before you perform any service, what your role is. If you do not, you place yourself in grave danger.
PERSISTENT
30 years of trial experience Now mediating all types of cases HargettMediation.com rhargett@rcmhlaw.com 512.660.5960
OOOOOOOO VVVVV CCCCCCCCCC MMMMMMMMMM 26
AUSTINLAWYER | FEBRUARY 2022
Rob Hargett
As pro bono legal counsel, your professional duties are the same as an attorney receiving a full fee. You should determine if the professional liability insurance your law firm or you carry covers pro bono legal advice. Some insurers expressly exclude all coverage unless you specifically declare your pro bono clients. Others require an endorsement. If you have elected to serve as a board member, not advising as an attorney, you should take great pains to make that clear from the very beginning. The great thing about being a lawyer
is that everybody thinks we are smart and more sophisticated and knowledgeable than others. Board members will turn to you even when they are smarter or more experienced than you. That can be flattering at first but can generate negative consequences. Always remember, if acting as a board member, you are just one vote. In your every charitable advenAUSTIN LAWYER L AL ture, I wish you theAbest! Footnotes 1. See Tex. Civ. Prac. & Rem. Code ch. 84 (the Charitable Immunity and Liability Act of 1987) (providing statutory framework for charitable immunities and liabilities).
2. See, e.g., Nat’l Highway Traffic Safetly Admin., The Economic and Societal Impact of Motor Vehicle Crashes, 2010 (Revised), May 2015 (Revised), avail. at https:// crashstats.nhtsa.dot.gov/Api/Public/ ViewPublication/812013.
Effective Jan. 1, 2022, the Briggs & Veselka team has joined Crowe LLP, a public accounting, consulting, and technology firm with offices around the world. Following the completion of the transaction, the Texas presence of Crowe includes more than 550 professionals. The firm and its subsidiaries help clients make smart decisions that lead to lasting value with its tax, advisory, and consulting services. Crowe is recognized by many organizations as one of the best places to work in the U.S. Learn more at www.crowe.com.
Visit www.crowe.com/disclosure for more information about Crowe LLP, its subsidiaries, and Crowe Global. © 2022 Crowe LLP.
FW2212-001E
ADVERTISERS ADVERTISER . . . . . . . . . . . . . . . PAGE
Hilltop Securities . . . . . . . . . . . 14
Patrick Keel . . . . . . . . . . . . . . . . 18
Thomas Esparza, Jr. P.C. . . . . . 3
Apple Leasing . . . . . . . . . . . . . . 6
Judge Stephen Yelenosky . . . . 19
Thomas J Henry . . . . . . . . . . . . 17
Armbrust & Brown, PLLC . . . . 20
Knolle, Holcomb, Callahan & Taylor, P.C. . . . . . . . . . . . . . . . 15
Reed, Claymon, Meeker & Hargett, PLLC . . . . . . . . . . . . 26
Bollier Ciccone LLP . . . . . . . . . 8, 19 Broadway Bank . . . . . . . . . . . . 28 Cofer & Connelly, PLLC . . . . . . 5 Constable 5 . . . . . . . . . . . . . . . 20 Crowe LLP . . . . . . . . . . . . . . . . 27 Foster, LLP . . . . . . . . . . . . . . . . 4
Rose Resolution Group . . . . . . 12
Lakeside Mediation Center . . . 20
She Spies Private Eye, Inc. . . . 24
Laurie Ratliff LLC . . . . . . . . . . . 15
Texas Lawyer Insurance Exchange . . . . . . . . . . . . . . . . . 3
LawPay . . . . . . . . . . . . . . . . . . . 2 Noelke Maples St. Leger Bryant, LLP . . . . . . . . . . . . . . . . 19
UBS Financial Services Inc. . . . 11 Vaught Law Firm . . . . . . . . . . . 25 West, Webb, Allbritton & Gentry, P.C. . . . . . . . . . . . . . . 10
The Snell Law Firm, PLLC . . . . 9 UT Austin Center for Professional Education . . . . . . 15 FEBRUARY 2022 | AUSTINLAWYER
27
W E A LT H M A N A G E M E N T
Optimize your financial plan for a successful year. The beginning of a new year affords everyone the opportunity to review their long-term planning in conjunction with their overall financial well-being. For many, their circumstances or priorities have changed, and so should their financial plan. At Broadway Bank Wealth Management, our advisors believe that your assets provide the most return and value when your investment strategy and financial plan account for your current circumstances and your long-term goals. Our locally based, highly credentialed team will partner with you to help you achieve financial success. Let our team help you build and retain your wealth. broadway.bank/wealth • (512) 465-7801
Investment products are: Not FDIC insured Not guaranteed by the bank Not a deposit Not insured by a federal government agency May lose value
Rev. 1/22 #822915082
