Austin Lawyer, February 2023

A Winding Path to Today’s Practice

BY DOUG O’CONNELL

After serving as a prosecutor in the Travis County Attorney’s Office, the Travis County District Attorney’s Office and finally the U.S. Attorney’s Office, I had assumed I would have a fairly typical criminal defense practice. I was wrong.

10th Special Forces Group and to Afghanistan with the U.S. Special Operations Command. In addition, I served in Washington, D.C., New York, and other locations with Joint Special Operations Command (JSOC), including roles with the FBI’s Manhattan-based Joint Terrorism Task Force, dealing with

Recalled to active duty after the attacks on Sept. 11, 2001, I stepped away from private practice and returned full-time to work with the U.S. Army. Unbeknownst to even myself at the time, I was also creating the framework and expertise for my current legal practice. I deployed to Iraq with the Army’s

terrorism-related cases arising out of the Middle East, Africa, and Europe. Prior to my military retirement, I also commanded a theater-level Special Operations unit in the Texas Army National Guard, which focused on enhancing the counterterrorism capacity of African countries facing threats from Boko Haram,

Al-Qaida, ISIS, and other violent extremist groups. In this capacity, I deployed to multiple countries in Northwest Africa to help bolster their internal defense capabilities. During my military career, I earned two master’s degrees, one in Homeland Security from the Naval Postgraduate school and the other in National Security/Strategic Studies from the U.S. Army War College. The U.S. Government also granted me a top-secret clearance, which furthers access to information classified as “Sensitive Compartmentalized.” I currently use this clearance in representing defense contracting companies working on classified programs.

In 2017, I retired from the Army as a Colonel with a combined 30 years of active duty,

Army Reserve, and National Guard service. Through my reputation in the military and my tenacious defense of military personnel, I have been fortunate to earn a national reputation as one of the premier defense attorneys for military personnel accused of misconduct.

One of my first cases after re-entering private practice was representing a National Guard solider under investigation for fraud in connection with an Army recruiting scandal. One recruiting scandal client led to several clients, which eventually led to hundreds of clients. Along the way, I was shocked by the massive injustice and wholesale disregard for due process. My advocacy saved many under

What I had once envisioned as a typical criminal defense practice has become a firm that advocates for its clients within the criminal and civil justice systems, but combines the framework of military expertise and strategic problem solving, with the understanding of what it takes to look at a problem beyond the traditional litigation lens.

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AUSTIN BAR ASSOCIATION

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Finding the Right Path to Follow

Those of you who know me, know I love musicals. I had the great fortune to see Hamilton in New York with the original Broadway cast while it was in previews and before everyone knew what a phenomenon it would become. At that time, all I knew is that it was the new hip-hop musical. I didn’t know that it would have so many stories of triumph and tragedy.

Alexander Hamilton was an outsider who spoke up for what he believed in. Throughout his life, he shaped history with his great ideas, boundless energy, and fancy talking by questioning why things were done.

If you hadn’t studied the Founding Fathers before watching Hamilton, you might have been surprised by some of the things that unfolded throughout the musical, like I was. Because of the “Got Milk?” commercials from the ‘90s, I knew that Aaron Burr killed Alexander Hamilton in a duel, but I didn’t know why. One of the most tragic scenes in the show is when you get to the end where Alexander Hamilton

is just living his life, having survived a political scandal and the loss of a son. Someone asked his opinion about who should be the next president of the United States, and he provided it.

His response caused a reaction he didn’t expect. Aaron Burr decided Hamilton kept him from the room where it happened. Again. He seethed and recounted a list of alleged grievances he believed Hamilton had caused him since they were in college. Hamilton wasn’t living in that anger. He acknowledged they had disagreements, but it didn’t impact his everyday life. Burr, instead, stewed in his unwarranted vitriol and hatred for Hamilton, decided it was time for revenge, and challenged him to a duel.

Don’t wait until you are in Weehawken at dawn, with a

pistol, ready to duel with someone else, or yourself. Recognize that the world is wide enough for all of us before you become the villain in our history books.

Aaron Burr was a lawyer. If he was around now, he could have benefitted from the Texas Lawyers Assistance Program (TLAP). You can get help from TLAP 24 hours a day, seven days a week by calling or texting 1-800-343-TLAP. Please ask for help before the duel begins. AUST INL AW Y ER AL AL

Chris Andre

Busy Schedule? Call me. Home or Office Viewing and Delivery Any Make. Any Model.

Aaron Burr was a lawyer. If he was around now, he could have benefitted from the Texas Lawyers Assistance Program (TLAP).

A Lesson from Hamilton

investigation, but I still couldn’t stop the Army’s retribution against my clients. However, recently, on Nov. 3, 2022, senior Pentagon officials held a press conference and announced, in effect, that everything I had been saying and advocating for over the last eight years was in fact true—the investigations were flawed and the Army illegally created federal criminal history entries on thousands of soldiers and veterans. After the Army’s admissions, I expect to file claims for damages for most all of my clients.

within the criminal and civil justice systems, but combines the framework of military expertise and strategic problem solving, with the understanding of what it takes to look at a problem beyond the traditional litigation lens. We work with our clients not just in the courtroom, but also in navigating our governmental bureaucracies. I believe in representing each of my clients with the same tenacity I bring to my military clients, and our firm is built around upholding that same reputation.

In addition, my expertise is

but we also have an office in the Killeen/Fort Hood area, and expect to open a San Antonio office in early 2023. Most recently, we successfully recovered damages

for the family of a junior airman who was killed on a U.S. air base in Germany and represented a sexual assault victim in a civil action against her attacker. AUST INL AW Y ER AL AL

Closer to home, I continue to represent military personnel and veterans in courts around the Central Texas area, but I’ve also focused on representing all types of people accused of crimes, ranging from criminal mischief to defrauding the federal government to first-degree murder, as well as alleged victims. What I had once envisioned as a typical criminal defense practice has become a firm that advocates for its clients

frequently sought out by law enforcement officers facing criminal charges in what I call the “war on cops.” I, along with my trial partner Ken Ervin, take on many high-profile cases where police officers are indicted in officer-involved shootings or other use-of-force incidents.

Today, my law partner Wesley West and I run a growing firm of six attorneys. O’Connell West, PLLC is headquartered in Austin,

Doug O’Connell is a partner at O’Connell West, PLLC in Austin and Killeen. He served 30 years in the Army & Army National Guard. Doug retired in 2017 at the rank of Colonel.

What You Need to Know in 2023

BY JUDGE AMY CLARK MEACHUM

Starting on Feb. 6, 2023, ALL contested civil and family court hearings and trials will be in-person at the CFCF—except where all lawyers and all parties have agreed to be virtual and notified Court Administration.

W

We also want to share our plans for the new year. Starting on Feb. 6, 2023, ALL contested civil and family court hearings and trials will be in-person at the

e are excited to celebrate the new Travis County Civil and Family Courts Facility (CFCF). The CFCF is an effective, functional, and modern building that will better meet the needs of Travis County.CFCF—except where all lawyers and all parties have agreed to be virtual and notified Court Administration. Emergency Duty Court will remain virtual for now. Submission Dockets will continue for agreed orders. We look forward to seeing lawyers and litigants in person in February, except in the cases where everyone has agreed to be virtual. We will be tracking the agreements, studying the data, and following the emergency

orders and proposed laws while ensuring an accessible, fair, and just court system for all.

In addition, the judges are working with the Austin Bar Association on scheduling several CLEs in the new year to communicate our plans, listen to your ideas, and answer your questions. This is an exciting moment to be a part of our Austin legal community, and we look forward to seeing you (in person) soon!

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partners: associate attorneys:

A Message from Judge Amy Clark Meachum

Judge Amy Clark Meachum has served as the presiding judge of the 201st District Court since January 2011. She is also the Local Administrative District Judge for the Travis County Courts.

Picture-Perfect Day

Ribbon-Cutting Ceremony and Portrait Unveiling at CFCF

The end of the year brought the long-awaited ribbon-cutting ceremony for the new Travis County Civil and Family Courts Facility (CFCF). A huge crowd of judicial and legal community leaders, including more than a dozen judges, gathered on Dec. 2, 2022 to see the beautiful and spacious facility and show their support. 261st District Court Judge Lora Livingston, now retired, had the honor of cutting the ribbon for the momentous event. She has been a major force in supporting the project for many years.

A huge crowd of judicial and legal community leaders, including more than a dozen judges, gathered to see the beautiful and spacious facility and show their support.

A portrait of Judge Livingston hangs in the CFCF. It was unveiled one the same day, just before the ribbon cutting. She was elected in 1998—the first African American woman to serve on a district court in Travis County, sworn into office in January 1999, and retired in December 2022. In an homage to her magnificent career, Judge Livingston brought the same “sign-in” book used decades ago at her initial swearing-in ceremony, so people could sign it for the last time.

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ABOVE: The ribbon-cutting ceremony marked the opening of the new Travis County Civil and Family Courts Facility.

LEFT: Judge Lora Livingston and husband, Eric Kennedy, pose with Judge Livingston’s portrait.

Can You Hear Me Now?

Austin Bar Awarded $15,000 Grant for Podcast

The Austin Bar Association was awarded a $15,000 grant from the Texas Bar Foundation to continue its dedicated service to the legal community in Central Texas through programs and initiatives in 2023.

The Bar submitted a proposal expressing a desire to create a podcast aimed at informing the community on important issues. One particular initiative highlighted by Austin Bar President Amanda Arriaga is the Council of Firsts. Arriaga, the first Hispanic female president of the Austin Bar, plans to open the door to communication on the topics of diversity, equity, and inclusion in leadership. The objective is to discover challenges and find solutions by having conversations and sharing knowledge with leaders from varying backgrounds and experiences through a podcast.

“I will be working with the other ‘Firsts’ at the Austin Bar, and we will be having discussions, making presentations, writing articles in the spirit of trying to discover how we can ensure that the Austin Bar is seen as an inclusive organization. This grant serves as the primary resource for us to obtain the necessary equipment to bring our podcast to life.”

Arriaga says it’s a step to ensure the Austin Bar is at the forefront of making a difference

for its members, thereby enhancing the legal community. Since 1965, the Texas Bar

Foundation has awarded more than $24 million in grants to law-related programs. Supported by members of the State Bar of Texas, the Texas Bar Foundation is the nation’s largest charitably-funded bar foundation. AUST INL AW Y ER AL AL

“Information is power, the not knowing is devastating.”

Congratulations, 2023 Distinguished Lawyers!

The Austin Bar Foundation’s 2023 Distinguished Lawyer honorees are staples in the Central Texas judicial and legal communities. Combined, they possess more than 100 years of service in the field of law. These honorees are trailblazers known for their widespread community contributions and unique personalities , and have an unparalleled legacy of service. The Austin Bar Foundation proudly recognizes these 2023 Distinguished Lawyers for their

outstanding work. Get to know our honorees.

JUDGE LORA LIVINGSTON

Judge Lora Livingston is a 1982 graduate of the UCLA School of Law. She began her legal career as a Reginald Heber Smith Community Lawyer Fellow assigned to the Legal Aid Society of Central Texas in Austin. After completing the two-year fellowship program, she continued to work in the area of poverty law until she

entered private practice with an emphasis on family law. She began her judicial service as an associate judge for the District Courts of Travis County and after her successful election, Judge Livingston was sworn in as judge of the 261st District Court in January 1999. Her judicial colleagues elected her to serve as the Travis County

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Local Administrative Judge, and she led the council of judges for nine years. She served many years as the Civil Presiding Judge until her recent retirement. She is the first African American woman to serve on a district court in Travis County.

Judge Livingston has dedicated her legal career to promoting access to justice for all. She has served on the boards of the Texas Equal Access to Justice Foundation, the Texas Access to Justice Commission, the National Association of IOLTA Programs, and the Texas Center for the Judiciary. She is a member of the National Bar Association and the National Association of Women Judges. She is a delegate to the House of Delegates of the American Bar Association and has served on the ABA Standing Committee on the Delivery of Legal Services, the ABA Standing Committee on Legal Aid and Indigent Defendants (SCLAID), and the ABA Judicial Division. She has also been active in the Austin Bar Association, the Austin Black Lawyers Association and the Travis County Women Lawyers’ Association.

Judge Livingston is also a proponent of pro bono activities and has served on the board of Volunteer Legal Services of Central Texas (formerly Austin Lawyers Care). She was instrumental in the establishment of the Travis

Judge Livingston has dedicated her legal career to promoting access to justice for all.

County Self Help Center for self-represented litigants, and her support for access-to-justice initiatives is unwavering.

Judge Livingston has received a number of awards, including: the Outstanding Achievement award from the Travis County Women Lawyers’ Association; the Texas Access to Justice Commission Pro Bono Champion Award; the Texas Equal Access to Justice Foundation Harold F. Kleinman Award; the Exemplary Judicial Faculty Award from the Texas Center for the Judiciary; the Lone Star Girl Scout Council Woman of Distinction Award; the Austin Independent School District Community Service Award; the Lotus Award from Asian Family Support Services; the Distinguished Service Award from the National Center for State Courts; the Spirit of Excellence Award from the American Bar Association; and the Jurisprudence Award from the Anti-Defamation League of Austin.

An active member of the Austin community, Judge Livingston has served on the boards of the Ann Richards School for Young Women Leaders, Capital Area Food Bank, Austin Symphony Orchestra, Austin Tenants Council, Central East Austin Community Organization, YMCA, Austin Area Urban League, El Buen Samaritano, and Seminary of the Southwest. She is also a graduate of Leadership Austin.

BOBBY TAYLOR

a strong belief that he wanted to become a lawyer, but the actions of others, life’s effects on his extended family members, and the daily realities of surviving pushed him into who he is today. Taylor’s father, with the family, drove roads using the green travel book provided by the Navy showing where they could stop and avoid the “Whites Only” gas stations, coffee shops, and bathrooms. He read many “Colored Not Allowed” signs. These experiences shaped Taylor’s thoughts as a young boy, and

undoubtedly provided a roadmap for his efforts today in the legal community.

Taylor attended junior college in San Diego, Calif.,

and transferred to Bishop College before graduating from the University of Texas at Arlington, where Johnny Reb

Bobby Taylor’s movement towards the field of law developed as he was growing up. Taylor had

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Bobby Taylor entered The University of Texas School of Law with seven other black students in his class and graduated in 1972. He immediately went to Legal Aid and Defender Service and has practiced law in East Austin since graduation.

Congratulations 2023 Distinguished Lawyers!

was the mascot. He entered The University of Texas School of Law with seven other black students in his class and graduated in 1972. Taylor immediately went to Legal Aid and Defender Service and has practiced law in East Austin since graduation.

Racial discrimination, sexual inequalities, and various types of discrimination injustices have affected every aspect of his practice including having a U.S. Federal District Judge prevent Taylor from approaching the bench in Jackson, Miss. with other retained attorneys explaining the sole basis for such was Taylor’s race. Within months of becoming an attorney, Taylor filed a class-action lawsuit against the Travis County Sheriff and Commissions which lasted 18 years and resulted in the Travis County Jail being declared unconstitutional by Judge Jack Roberts. He has sued many of the local law enforcement offices because of allegations of excessive force and traveled as far as Biloxi, Miss. in seeking justice for inmates and their families. All of Taylor’s clients and cases involve individuals and family members and include every aspect of life’s injustices.

Taylor is proud to have been awarded various awards, including the NAACP Lifetime

Achievement Award and the 2020 Top Ten Super Lawyers Award given November 2021 by the Austin Black Business Journal. His life and practice are based upon life’s inequities, whether because of race, sexual orientation, origins, orientations, or other injustices.

JUDGE LEE YEAKEL

Lee Yeakel was born and raised in Oklahoma City, Okla. After graduating from high school, he came to Austin to attend The University of Texas, obtaining a Bachelor of Arts degree in 1966 and a Doctor of Jurisprudence degree in 1969. He received his license to practice law on Sept. 15, 1969. Just before entering law school in 1966, he and his wife Anne married. Upon graduation from law school, he joined the small Austin law firm of Mitchell, Gilbert & McLean.

He was trained as a generalist, working on just about anything that came in the door, trying civil and criminal cases in both state and federal court. The specialization so prevalent in the practice of law today was non-existent in the late sixties and early seventies, and Austin was a small-town legal market with very few of the complex cases common today.

Judge Yeakel spent his entire practicing career in Austin with several firms, the last of which was Clark, Thomas & Winters, where he was a partner when, in early 1998, then-Governor George W. Bush appointed him to fill the vacant chief-justice position on the Texas Third Court of Appeals. He spent five and a half years on the Third Court as chief justice and

justice. During that time, he received a Master of Laws in Judicial Process degree from the University of Virginia in 2001. In 2003, President George W. Bush nominated him to be a U.S. District Judge for the Western District of Texas. He assumed that position in July 2003, after being unanimously confirmed by the U.S. Senate. He has been named the Samuel Pessarra Outstanding Jurist by the Texas Bar Foundation and Outstanding Texas Jurist by The Review of Litigation of the University of Texas School of Law. In 2020, the Texas Bar Foundation named him an Outstanding 50-Year Lawyer. The Austin Chapter of the American Board of Trial Advocates has recently presented him with The Scott Ozmun

Justice Yeakel spent five and a half years on the Third Court as chief justice and justice. During that time, he received a Master of Laws in Judicial Process degree from the University of Virginia in 2001. In 2003, President George W. Bush nominated him to be a United States District Judge for the Western District of Texas.

Judicial Courage Award. He is a member of the Robert W. Calvert American Inn of Court and the Honorable Lee Yeakel Intellectual Property American Inn of Court, which is named in his honor. He has served as president of both Inns and as a member of the board of trustees of the American Inns of Court Foundation. He is a former board member of the Texas Young Lawyers Association and was the last president of the Austin Junior Bar Association. Judge Yeakel is a life member of the National Conference of Commissioners on Uniform State Laws, a member of the American Law Institute, a sustaining life fellow of the Texas Bar Foundation, a life fellow of the American Bar Foundation, and a life fellow of the Austin Bar Foundation. He is a frequent speaker at professional

development courses and regulatory conferences. Judge Yeakel has served as president of the Rotary Club of Austin as well as The Headliners Club of Austin. He was a member of the U.S. delegation to The Hague Conference on Private International Law, Treaty on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, and was a signatory of that treaty on behalf of the United States. Judge Yeakel is a former U.S. Marine. He and Anne have two children and three grandchildren. AUST INL AW Y ER AL AL

It’s Time To Take Time

BY NIKKI G. MAPLES

TIME VS. MENTAL HEALTH

Time…Who’s got time to go on vacation? Hasn’t every lawyer had the feeling of not having enough time to step away from their practice? As lawyers, we find it incredibly difficult to turn off our work brain. Personally, my brain is constantly taking mental snapshot images of my calendar, which includes meetings, discovery deadlines, pretrial deadlines, etc. Oftentimes, just the thought of how much effort is required to manage those deadlines and prepare your calendar for an extended absence to step away and peacefully enjoy vacation feels like more work than reward.

It takes an exorbitant amount of time to manage the complexities of our law practice —management of case deadlines, time-sensitive responses, case emergencies, demanding clients, employees, etc. Those time-consuming tasks also contribute to stress, anxiety, panic, and depression. It is no secret that lawyers are among one of the top

professions that suffer from alcohol and substance abuse. Those vices are often used as a means of coping, albeit in an unhealthy manner. We are not hostages to our careers. We are not owned like property or chattel by our profession. We are also not slaves to our clients. The minute we start believing that we have no options or that we have no ability to step away is the moment when our perception is grossly skewed and flawed.

It whittles down to preparation. We are lawyers, which means we should all be accustomed to and conditioned for preparing our cases for various stages of litigation. So, take the time to assess your existing case load and tasks. Determine what needs to be done to get your practice to a place where your cases are idling. Then, take the time to make a plan! Plan a vacation, just do it!

ECONOMICS VS. MENTAL HEALTH

Who can afford to take the time

When considering the definitions of “value,” we can make an excellent argument that the monetary worth of our services are much more valuable when we are performing within our zone of excellence. That said, in order to get to our zone of excellence, we must sharpen our skills, abilities and talents. To sharpen our skills, abilities and talents, we simply cannot be burned out, fatigued, or impaired.

away for vacation? Time away from our cases usually results in a loss of income. It is a double whammy to incur costs related to travel and vacation while not earning an income. In terms of economics, let’s consider worth and value.

Merriam-Webster Dictionary defines “worth” as: a) monetary value, b) the equivalent of a specified amount or figure, c) the

value of something measured by its qualities or by the esteem in which it is held, and d) moral or personal value. When considering “worth,” we can apply each of the various definitions and make a valid argument to support the notion that taking time away from the practice of law is worth it—worth it for our mental health, worth it to our support team at the office, and worth it

Nikki G. Maples is a partner at Maples Jones, PLLC. She practices family law exclusively in Austin with a focus on divorces involving high net worth and complex property division. Maples also shares a love and a passion for health and wellness within the legal profession and her community.

to our clients to be represented by someone who has the mental clarity to be objective and creative. The adverse argument only supports the belief that we are slaves to our cases.

Merriam-Webster Dictionary defines “value” as: a) the monetary worth of something, b) a fair return or equivalent in services, and c) relative value, utility or importance. When considering the definitions of “value,” we can make an excellent argument that the monetary worth of our services are much more valuable when we are performing within our zone of excellence. That said, in order to get to our zone of excellence, we must sharpen our skills, abilities, and talents. To sharpen our skills, abilities, and talents, we simply cannot be burned out, fatigued, or impaired.

In short, economics simply cannot be viewed as dollars and cents. Take the time to drill

down on economics and ask yourself, “What is the value and worth of my mental health as a successful and productive lawyer?”

PERFORMANCE VS. MENTAL HEALTH

Performance vs. mental health is a continuation of the idea that we should all strive to perform within our zone of excellence. Otherwise, we are performing in a zone of mediocrity and if mediocrity is an acceptable zone of performance, then my next article will lecture about the importance of working with a business coach.

The legal profession is hard, period. It is mentally challenging, aggressive, and tiring. We are humans and we need to rest and recharge periodically. Most of us have had the opportunity to observe our colleagues in the courtroom and, naturally, we have seen some of our colleagues

look tired, short on patience, disheveled, unprepared, etc. In those moments, I immediately assume that the lawyer is not taking care of themselves. Don’t be that lawyer. Don’t put yourself in a position where your community is worried about your health and well-being. If we are responsible in caring for our mental health, then the goal of achieving peak performance and practicing within our zone of excellence will be more attainable.

TAKEAWAYS

Lawyers can’t afford not to take time away.

When weighing time vs.

money, consider the cost. At what cost are we willing to jeopardize our health for fear of a dip in our income?

We are not victims or hostages to our profession, so stop using that as an excuse for not taking time to decompress.

These are not foreign concepts, my friends. It is undisputed that lawyers are wired to endure long hours and challenge our mental stamina to do the work we need to do, but it is truly time to rewire ourselves in search of the almighty work-life balance…that should be our practice, not the practice of law. AUST INL AW Y ER AL AL

Me di a tor, Arbi t ra tor, Spe ci a l J udge a nd Li t i ga t i on Consult a nt

Senior District Judge

Stephen Yelenosky

If we are responsible in caring for our mental health, then the goal of achieving peak performance and practicing within our zone of excellence will be more attainable.

Celebrate Black History: Learn, Engage, and Explore

Cultural

Landmarks and Spaces in Austin

BY SONTA HENDERSON

Want to learn more about your community? Take a look at these places and explore historical sites related to Black history in the city. Learn about the great contributions of African Americans which led to change in our city, state, and nation.

• Downs-Mabson Field

Located at 2816 E. 12th Street, the Downs-Mabson Field was the home field of the Austin Black Senators, a team in the professional “Negro League.” Notable sluggers such as Willie Wells, Satchel Paige, Willie Mays, and Smokey Joe Williams are among those who played in games at the field.

• Colored Teachers State Association Building

Located at 1191 Navasota Street, the Colored Teachers State Association Building was designed by the state’s first African American architect. From 1962 to 1966, it served African American teachers who were integral in desegregating Texas public schools and winning equal rights and wages.

• Limerick-Frazier House Locatated at 1501 E. 12th Street, the Limerick-Frazier House was purchased by John W. Frazier in 1905. After his death, his widow, Laura, used the home as lodging for African American students and travelers during the Jim Crow era.

• George Washington Carver Museum

Located at 1165 Angelina Street, the George Washington Carver Museum is home to a multitude of historical initiatives. It serves as a vital part

•

of the community in sharing cultural history, art, and more.

Barbara Jordan Statue on

the UT Campus

Located at 307 W. 24th Street, the statue commemorates Barbara Jordan and her history of “firsts.” Jordan was the first African American person to serve in the Texas Senate since Reconstruction (196672), the first African American

woman from the South elected to the U.S. Congress (197278), and the first woman to deliver the keynote address at a national party convention (the 1972 Democratic Convention). There is also a statue of Jordan inside the Austin Bergstrom International Airport.

• Texas African American History Memorial

Located at 100 W. 11th Street, the Texas African American History Memorial was installed in 2016. It features Hendrick Arnold and Barbara Jordan, and recognizes Juneteenth (June 19, 1965).

There’s always an opportunity to learn, engage, and explore.

AUST INL AW Y ER AL AL

TOP LEFT: Downs-Mabson Field; TOP RIGHT: George Washington Carver Museum; BOTTOM LEFT: The Colored Teachers State Association Building; BOTTOM RIGHT: The Limerick-Frazier House. Photos courtesy of Sonta Henderson.

From 1962 to 1966, the Colored Teachers State Association Building served African American teachers who were integral in desegregating Texas public schools and winning equal rights and wages.

NEW MEMBERS

The Austin Bar welcomes the following new members:

Benjamin Abbas

Leila Blatt

Grant Burns

Ben Dillon

Robert Earle

Keely Freund

Erica Galeon

Kenneth Hobbs

Elizabeth Howard Clinton Jones

Peyton Maddox

Gabriella Malloy

Sadie McLaughlin

Emmanuel Ojomo Ashwani Patel

Joshua Prywes

Tori Rose

James Skipton

Paige Southworth

Justin Vatter

Jessica Visser

Catherine Walters

MOVING ON UP

 Melanie Plowman has been promoted to partner at the Texas appellate firm Alexander Dubose & Jefferson LLP. She earned her law degree from the University of Michigan Law School and holds an undergraduate degree with honors from Brown University. Plowman is a former Texas Assistant Solicitor General and has handled appeals in Texas state appellate courts, the U.S. Court of Appeals for the Fifth Circuit, and the U.S. Supreme Court. She also previously served as a clerk to Judge Robert M. Parker of the U.S. Court of Appeals for the Fifth Circuit and Judge R. Guy Cole Jr. of the U.S. Court of Appeals for the Sixth Circuit. Her trial and appellate work has resulted in her being named to the Thomson Reuters Texas Super Lawyers and Texas Rising Stars legal guides.

IN MEMORIAM

 Steven Douglass Arnold passed away on Dec. 8, 2022, at the age of 67. Arnold worked

for the Hinkle Law Firm for over 30 years. Arnold held an accounting degree from Texas Tech University and a J.D. from The University of Texas School of Law.

 Robert (Rob) Looney passed away on Dec. 1, 2022, at the age of 79. He had a long career with the State of Texas and the oil and gas industry, working for companies such as Phillips Petroleum Company and the Texas Association of Business. Looney eventually served 26 years as president of the Texas Oil and Gas Association. He received a B.S. in Education from the University of Kansas and his J.D. from the University of Kansas School of Law.

 Kimberly (Kim) Alison Yelkin passed away on Dec. 3, 2022, at the age 67. Yelkin was a managing partner at Foley & Lardner, LLP’s Austin office. She was also the co-chair of Foley’s State and Local Affairs Practice.

Prior to Foley & Lardner, she practiced at Akin Gump Strauss Hauer and Feld. Yelkin attended

the University of Southern California and graduated from Duke University in 1977. She earned her J.D. from Creighton University of School of Law in 1980.

 Darryll Wayne Grubbs passed away on Dec. 4, 2022, at the age of 70. Grubbs had an extensive public affairs career which included working for then-State Senator Lloyd Doggett as a legislative staff member in the 1970s. During the 1980s he was appointed as Assistant Attorney General serving in the child support enforcement division. Grubbs held a B.A. in Philosophy from Trinity University, M.A. in Government from The University of Texas, and a J.D. from The University of Texas School of Law. AUST INL AW Y ER AL AL

ABOVE: (from left) Arnold, Grubbs, Looney, Plowman, and Yelkin.

Family Law Specialist

*Kimberly A. Edgington kim@whitten-law.com

Tim Whitten has practiced in family law since 1992. He has been certified as a Family Law Specialist by the Texas Board of Legal Specialization.

Her Own Way—Creating a Path to Success

Meet Austin Bar Member Tychanika “Tycha” Kimbrough

am a first-generation college and law school graduate, and I am incredibly blessed and grateful to be where I am now. I have amazing mentors, who have invested in me and have encouraged me on my journey to become a fearless licensed attorney and subsequently a law firm owner, and it is so important that I do the same for others.

AUSTIN BAR: What is your current job, how long have you had it, and what do you enjoy most about it?

Tychanika “Tycha” Kimbrough is the founding attorney of Kimbrough Legal, PLLC and an advocate for justice and social change. As a licensed Texas attorney, Kimbrough is a passionate advocate who commits to going above and beyond to serve her clients. Kimbrough obtained her Juris Doctor degree and professional certificates in Criminal Law and Family Law from Baylor Law School. She earned her Bachelor of Public Administration degree, with high honors, from Texas State University. While pursuing her law degree, she interned for the Honorable Judge Hoffman at the 68th Judicial District Court, the Honorable Justice Alvarez at the Fourth Court of Appeals, the McLennan County District Attorney’s Office, and Greater Waco Legal Services.

AUSTIN BAR: Tell us about your background.

KIMBROUGH: I was born and raised in San Antonio and attended Texas State University for my Bachelor of Public Administration and Baylor Law School for my Juris Doctor. After graduating from Baylor Law School in 2018, I moved to Austin to start my career working for a personal injury firm. In 2019, a few months after becoming licensed, I made my dream my reality and launched Kimbrough Legal, PLLC. My husband and I have two daughters, Evangeline, who is three years old, and Elissa, who recently turned 1. My husband and I love traveling; we believe in collecting memories, not items. My hobbies include traveling

around the world, trying new foods, home organizing and décor, and networking.

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

KIMBROUGH: At an early age, I decided I was going to become a lawyer. It still feels surreal that I have made my dream my reality. It is a blessing to have the privilege to help others in the way that I do.

AUSTIN BAR: What’s a favorite thing to do or place to go in Austin?

KIMBROUGH: One of my favorite spots to go to is The Domain—there is never a dull moment there. I also love trying new restaurants and food trucks.

KIMBROUGH: I am the founder and managing attorney at Kimbrough Legal, PLLC, where my team and I help professionals navigate divorce and family law, as well as protect the rights of those accused of crimes. I launched my practice in 2019 as a solo attorney. Now, I have a team of eight professionals, which includes one senior attorney and one associate attorney. My team and I pride ourselves on our professionalism and zealous representation in the courtroom. I love having the ability to genuinely help people during challenging times, and I love having the opportunity to build something that is greater than myself.

AUSTIN BAR: Tell us a hobby or something about you people may be surprised to know.

KIMBROUGH: I am a firstgeneration college and law school graduate, and I am incredibly blessed and grateful to be where I am now. I have amazing mentors, who have invested in me and have encouraged me on my journey to become a fearless licensed attorney and subsequently a law firm owner,

and it is so important that I do the same for others. I spend time mentoring others who are striving to attend law school and create thriving law firms.

AUSTIN BAR: Choose your favorite legal drama from television and tell us why: Law & Order, Night Court, LA Law, Perry Mason, or another?

KIMBROUGH: These days, I rarely have time to watch television, but if I have some time to spare, you can absolutely catch me watching Law & Order SVU. Although television does not get it right all the time, I love watching the detectives solve the cases. Most times, I have solved the case before they do.

AUSTIN BAR: Which television judge would you most rather go before on a case: Judge Mathis, Judge Judy, Judge Steve Harvey, Judge Hatchett or another?

KIMBROUGH: An outstanding colleague, Vonda Bailey, launched Support Court with Judge Vonda B. I do not envision that I would ever have to go before a television judge on a case, but she would be who I would rather go before, perhaps on behalf of a client. Judge Vonda B is a judge who is very direct and upfront with litigants and does not sugarcoat anything. AUST INL AW Y ER AL AL

“

”

I

Rick Cofer

Jaynie Badgett

Liz Duggan

What I Did Last Summer, Part 2

Gathering Opinions on New Legal Writers

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

In summer 2022, I met with five attorneys to gather input for improving my teaching of legal writing. In this column, I report on my consultants’ answers to these two questions:

1. What do you think of new lawyers’ ability to manage research and writing projects?

2. What are some changes or additions to law-school legal-writing instruction you would recommend?

1. NEW LAWYERS’ ABILITY TO MANAGE RESEARCH AND WRITING PROJECTS

The responses to this question fell into three categories: Getting assignments, following up, and following through.

Getting Assignments

I practiced law before the Internet, cell phones, and email, so the way I got assignments was almost always to go into someone’s office with a pen and pad in hand. I sat and took notes on what I was told.

It turns out that is still a good idea, according to my consultants.

If possible, assigning attorneys and assignment-receiving new attorneys would meet in person to discuss the assignment. The new attorney should have something to write with—probably not just a cell phone.

Even when getting an assignment by email (the most common method, according to my consultants), it’s usually a good idea to drop by and talk. New attorneys should ask about the assigning attorney’s expectations on timing, depth, length, and so on to be sure they understand the assignment. Then, after some initial work, they should check back to be sure they’re on

the right track.

Following Up

New lawyers and law students tell me they sometimes avoid following up with questions because they don’t want to look inept or uninformed. But my consultants said that, in fact, not following up with the assigning attorney is a bigger problem than asking too many questions.

Although it doesn’t happen frequently, it’s a serious problem to do the research and write up a project that isn’t what the assigning lawyer wanted. Of course, it’s best to follow up after you’ve done at least some research, so you’ll have something useful to say when you check back.

Sometimes the new lawyer gets a project and can’t find anything or, at least, anything that seems responsive to the assignment. When that happens, it’s important to follow up, but it is just as important to be able to report back with “here is what I did.”

For example, it’s great if new attorneys can say, here are the research queries I submitted, or here are the types of authorities I consulted, or something like that.

Following Through

According to my consultants, new lawyers should aspire to do more than merely answer the question; one recommendation is to include a short report on the best cases for and against the outcome predicted. In addition, new lawyers should invest in the problem: Ask about it, care about it, try to get involved.

Some new lawyers make the mistake of assuming that it’s a senior attorney’s job to get them involved and pull them into projects. But getting involved is a new attorney’s job. New attorneys should become invested in the problem, ask follow-up

According to my consultants, new lawyers should aspire to do more than merely answer the question; one recommendation is to include a short report on the best cases for and against the outcome predicted.

questions, and care about the result for the client.

2. RECOMMENDED CHANGES OR ADDITIONS TO LAW-SCHOOL LEGALWRITING INSTRUCTION

My consultants had lots of ideas, and I’ve listed some below. There are some great suggestions, but given that my focus is on first-year legal writing courses, I’ve categorized them into two groups: (a) good ideas that my colleagues and I are already doing, are hoping to do more of, or are planning for the future; and (b) good ideas that might become part of an upper-division course or clinic but that would be difficult to implement in the first-year legal-writing course. (a)

• Oral assigning of projects

• Assignments given and

responded to by email only

• Assignments that ask, “The client has done [or wants to do] X. What do you recommend?”

(b)

• Assignments to adapt a template motion or brief into a motion or brief on a different topic

• Assignments to find motions, briefs, and other pleadings prepared by opposing counsel

• Training in transactional drafting

• Assignments to boil down a complex transaction into a concise report

Overall, it was a great summer project that I hope to do again in a more systematic and expanded way. AUST INL AW Y ER AL AL

AYLA PRESIDENT’S COLUMN

BLAIR LEAKE , WRIGHT & GREENHILL, P.C.

Lead from the Front on the AYLA Board of Directors

Leadership opportunities are all too rare for young attorneys. At the beginning of your career, you go from a cocksure 3L who has law school all figured out to a world where the term “baby” is almost universally used to describe you as an educated, licensed professional. You may have courageously memorized civil procedure or the UCC going into the bar exam, but now you find yourself in wholly uncharted territories that include the ugly truth of how the practice of law is a business, client control, and inneroffice politics. Law schools rarely—if ever—cover any of the latter topics, even though they quite frankly crop up far more often than any procedural quagmire.

As a result, you start your career at the very bottom of the pecking order. Every paralegal in your building could do a better job than you at the day-to-day tasks of being a lawyer. The receptionist knows the building layout, personnel, and office workflow better than you do. Forget team-leader opportunities. Your role at the beginning is to shadow other attorneys, do the most basic of legal tasks assigned to you piecemeal, and overall find your bearings in the trade.

As time progresses, most jobs thankfully will change and progress as time goes on. (Pro tip: If your job does not, you

should start looking for a better job.) You will eventually be given your own cases or projects, but they will be of a size where “team leader” is hardly a fair descriptor for a team of one. You might eventually be assigned a paralegal or a legal assistant, but you will probably share that assignment with attorneys with more tenure and correspondingly more priority attention from staff. That’s the breaks of being a baby attorney.

The board of directors of the Austin Young Lawyers Association stands as one of the few opportunities to learn how to be a leader of (wo)men for young attorneys in Austin. AYLA is a nonprofit entity that hosts and operates many, or perhaps most, of the legal events in Austin—including judicial events, mixers, CLEs, volunteer events, and much more. AYLA has a budget, staff support, bylaws, voting procedures, board meetings, and committees, and these are all collectively shepherded year in and year out by the AYLA board of directors. Save for the true hero of AYLA—Debbie Kelly—there is no adjunct professor to watch over and guide you. Instead, you learn as you go from trial and error and from observing your peers—preferably fellow officers who have years of institutional knowledge to spare. You will lead committees. You will run events. You will help run board meetings. All of the above often includes creating meeting agendas, herding cats, and painstakingly moving the ball forward as the team leader—but at its very base those tasks are what leadership experience often boils down to, and how leadership as a skillset is honed. Very rarely will any young attorney be granted

Very rarely will any young attorney be granted the opportunity to be a leader at work more so than what being an AYLA officer provides.

the opportunity to be a leader at work more so than what being an AYLA officer provides.

If you have any notion of wanting to take on leadership roles at work or in your community in the future, I urge you to throw your hat in the ring and sign up

to run for a director position on the AYLA board for this coming bar year. Be sure to submit your nomination form—requiring a mere ten signatures, which we can help you obtain—by March 3, 2023. In the long run, you will not be sorry you did.

AUST INL AW Y ER AL AL

UPCOMING EVENTS

THURSDAY, FEB. 16, 2023

AYLA Docket Call

Electric Shuffle, 91 Red River St. Austin, TX 78701

5:30 – 7:30 p.m.

Sponsored by: Electric Shuffle

Visit ayla.org for a complete list of events and updates.

Emma Hilbert, Justice Chari Kelly, and Bev Bass attend the 2022 Judicial Reception.

A Season for Giving AYLA Toy Drive 2022

On Sunday, Dec. 11, 2022, the Austin Young Lawyers Association partnered with the YMCA to provide toys for 200 children! The AYLA Holiday Program is a holiday event for underprivileged families in the Austin community. Parents who attended were able to shop for Christmas presents for their children and have them wrapped by volunteers. The children in attendance enjoyed a magic show, photos with Santa, games, and holiday crafts courtesy of volunteers and the YMCA. The Tailgate sponsors provided the funds to purchase all of the gifts and the HEB gift cards for the families. This initiative makes a lifelong impression in the lives of

the children and their families.

Thank you to all of our volunteers who made this event possible. Special thanks to our generous sponsors: YMCA of Central Texas.  AUST INL AW Y ER AL AL

Calling Leaders to Serve on the AYLA Board of Directors

Sign Up Now to Run for a Position!

Attorneys who wish to serve on the 2023-24 Austin Young Lawyers Association (AYLA) board of directors have until March 3, 2023 to submit a nomination form to run. Serving as a director on the AYLA Board represents a great way to gain leadership experience, shape the local legal community, and meet other young attorneys who roam outside of the confines of your own office and legal field. 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, 2023. To be placed on the ballot, submit a nomination form signed by 10 current AYLA

MARCH 3

2023-24 AYLA BOARD OF DIRECTORS NOMINATION FORM DEADLINE

members to Debbie Kelly at debbie@austinbar.org by March 3, 2023. Nomination forms and additional information can be found online at ayla.org. Don’t miss this chance to get plugged into—and lead—your generation of Austin attorneys. AUST INL AW Y ER

AL AL

This initiative makes a lifelong impression in the lives of the children and their families.

ABOVE: Adam Schramak entertains with magic. RIGHT: YMCA supporters along with Austin Bar and AYLA members Justice Chari Kelly, Jenna Malsbary, Ciara Parks, Rudy Metayer, Morgan Shell, Meghan Kempf, and Johnathan Stone.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during November and December 2022. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Jan. 6, 2023.

Club’s Public Information Act request. Commission placed its letter to the AG in the interagency outgoing mail on July 17, 2019. The AG concluded the request for an opinion was untimely and ordered the information released unless there was a compelling reason to withhold. The trial court affirmed. The court of appeals held that Commission’s letter request was untimely. According to the court, July 5, 2019 was a business day when computing the 10-day deadline. July 5, 2019 was not a state or federal holiday; it was a day Commission unilaterally declared itself to be closed. The court further rejected Commission’s argument that the deliberative-process privilege rebutted the presumption of disclosure. The court affirmed.

ORIGINAL PROCEEDING: Court grants relief where trial court refuses to hear new evidence at de novo hearing.

judge’s orders. Family Code § 201.015(c) provides that parties may present witnesses on the issues specified for the de novo hearing and that the district court may also consider the record from the associate judge’s hearing. The court of appeals held that the district court abused its discretion when it refused the allow witnesses at the de novo hearing and granted relief.

TRIAL PROCEDURE: Court holds plaintiffs’ allegations required a certificate of merit.

court held that a certificate of merit was required. The court reversed and remanded.

FAMILY LAW: Court reverses trial court’s clarification of original decree.

PUBLIC INFORMATION ACT: Commission’s office closure is a “business day” in ten-day calculation.

TCEQ v. Sierra Club, No. 03-2100256-CV, Nov. 22, 2022, no pet. h.) (mem. op.). Commission sought an Attorney General (AG) opinion in response to Sierra

In re FamilyLink Treatment Servs., Inc. , No. 03-22-00210CV (Tex. App.—Austin Dec. 7, 2022, orig. proceeding) (mem. op.). Following a ruling by an associate judge, FamilyLink sought a de novo hearing. At the de novo hearing, the district court refused to permit new witnesses and considered only the evidence presented to the associate judge. The district court adopted the associate

Tucker Eng’g, Inc. v. Temperley, No. 03-21-00565-CV (Tex. App.—Austin Dec. 15, 2022, no pet. h.) (mem. op.). Buyers sued engineer who completed an inspection report for seller. The home had significant foundation problems that were not in the report. Engineer sought dismissal for the failure to file a certificate of merit. Buyers contended the inspection did not involve an engineer’s specialized training and was thus not the practice of engineering. The trial court denied the motion to dismiss. The court of appeals observed that the “practice of engineering” includes specified professional services and any other professional services necessary to complete an engineering service. All of buyers’ allegations related to defendant’s actions as a licensed engineer. Thus, the

Riley v. Riley, No. 03-21-00051CV (Tex. App.—Austin Dec. 29, 2022, no pet. h.) (mem. op.). Parties’ 1996 decree unambiguously awarded wife 50% of husband’s military retirement if, as, and when received. The 1996 decree did not limit the retirement award to amounts earned or payable as of the divorce. Wife sought half of the benefits when husband retired in 2015. Husband sought declaratory relief contending that retirement benefits accruing after the divorce were his separate property. In a 2021 order, the trial court clarified the 1996 decree to limit wife’s award to benefits due at the date of the divorce. The court of appeals observed that trial courts can clarify prior orders but cannot substantively change the property division. The court held that the trial court’s “clarification” was an improper modification. That the original decree awarded wife husband’s separate property may be erroneous and unconstitutional, but it is not void. Husband’s only option was to have appealed the 1996 decree. The court reversed and rendered. AUST INL AW Y ER AL AL

Laurie Ratliff is a former staff attorney for the Third Court of Appeals. She is board certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.

The following are summaries of opinions issued by the Fifth Circuit. The summaries are overviews of particular aspects of the opinions; please review the entire opinions.

STANDING: A plaintiff alleging fraud fails to adequately plead injury-in-fact necessary for Article III standing when the plaintiff’s theory of economic harm rests on implausible inferences.

Earl v. Boeing Co., 53 F.4th 897 (5th Cir. 2022). Several plaintiffs filed a class action alleging that Boeing and Southwest Airlines defrauded them by concealing a serious safety defect in the Boeing 737 MAX 8 aircraft. The district court granted the plaintiffs’ motion for class certification.

The defendants petitioned for permission to appeal the class certification decision, which the Fifth Circuit granted.

On appeal, the Fifth Circuit held that the plaintiffs failed to allege that they suffered an injury-in-fact for purposes of Article III standing. The plaintiffs asserted that they were injured by the defendants’ alleged fraud because they paid ticket prices that were significantly higher than the value of those tickets in light of the safety defect in the 737 MAX 8. The court

concluded that this theory of injury rested on the unsupported inference that disclosure of the safety defect would have caused airlines to continue offering MAX 8 flights but with a price discount. The more plausible inference, the court found, was that the airlines would not have offered any MAX 8 flights at all, which would have actually caused ticket prices to increase because the airlines’ usable fleets would have been smaller.

Having determined that the plaintiffs failed to plausibly allege that the defendants’ alleged failure to disclose the safety defect caused the plaintiffs any concrete harm, the court reversed the district court’s class certification order and directed the district court to dismiss the case for lack of jurisdiction.

JURISDICTION AFTER VENUE

TRANSFER: Once a district court transfers a matter to another district in a different circuit, neither the transferor court nor the circuit court under which it sits has jurisdiction to order the transferee court to transfer the case back.

Def. Distributed v. Platkin, 55 F.4th 486 (5th Cir. 2022). Plaintiffs, Defense Distributed and the Second Amendment Foundation, produce and make accessible information related to the 3D printing of firearms.

Plaintiffs sued the Attorney General of New Jersey (“NJAG”) and the U.S. State Department in the Western District of Texas. The district court initially dismissed the claims against the NJAG for lack of personal jurisdiction, but the Fifth Circuit reversed. On remand, the district court granted NJAG’s motion to sever the claims against him and transfer them to the District of New Jersey under 28 U.S.C. § 1404. The plaintiffs petitioned the Fifth Circuit for a writ of mandamus. The Fifth Circuit granted the petition and ordered the district court to request that the transferee court in New Jersey return the case to the Western District of Texas. But the New Jersey district court refused that request.

The plaintiffs then moved in the Western District of Texas for a preliminary injunction barring the restraints imposed by NJAG. The district court ruled that it lacked jurisdiction to consider claims against NJAG and dismissed the motion. The plaintiffs appealed. The Fifth Circuit affirmed, holding that once the case against NJAG was transferred to the District of New Jersey, the Western District of Texas lost all jurisdiction over the case, and neither that court nor the Fifth Circuit could compel the New Jersey district court to return the case. The Fifth Circuit noted that the

plaintiffs could have avoided this dilemma by moving for a stay of the district court’s severance and transfer order before the case was actually transferred by the clerk, but the plaintiffs failed to do so. AUST INL AW Y ER AL AL

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

The following are summaries of selected criminal opinions issued by the Third Court of Appeals from August 2022. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Jan. 1, 2022.

EXTRADITION – SUPPORTING

DOCUMENTATION: Documentation was sufficient to support defendant’s extradition.

Ex parte Bornhop, 654 S.W.3d 195 (Tex. App.—Austin 2022, no pet.). Bornhop was arrested in Austin for offenses alleged to have been committed in Missouri. In response to a requisition demand from the Missouri governor, the Texas governor issued a governor’s warrant ordering Bornhop’s extradition to Missouri. Bornhop filed an application for writ of habeas corpus with the trial court, challenging the sufficiency of the documents accompanying the

requisition demand. Specifically, Bornhop argued that neither the complaint nor probable-cause statements constituted “affidavits” made before a magistrate. The trial court denied Bornhop’s application, and the appellate court affirmed. The court explained that the Uniform Criminal Extradition Act (UCEA) requires that a requisition demand be “accompanied by a copy of an indictment found or by information supported by affidavit in the State having jurisdiction of the crime, or by a copy of an affidavit before a magistrate there, together with a copy of any warrant which issued thereupon.” Because the UCEA does not define “affidavit,” the court gave the term its common meaning, which included “a sworn statement in writing made especially under oath or on affirmation before an authorized magistrate or officer.” In this case, the requisition demand was accompanied by “certified copies of a felony complaint, signed by a prosecuting attorney, charging Bornhop with two counts of burglary and three counts of stealing; two probable cause statements signed by a detective under penalty of perjury; and the warrant for Bornhop’s arrest.” The detective’s probable cause statements provided that the detective, “knowing that false statements on this form are punishable by law,” “state[s] that the facts contained herein are true.” The statements were signed by an associate circuit judge above the stamped notation “Judge’s Signature” and next to the text, “For the purpose of extradition, I find probable cause.” The court agreed with the trial court that these statements constituted “affidavits” before a magistrate for purposes of the UCEA and concluded, based on these and the other documents supporting the requisition demand, that the trial court did not abuse its discretion in denying Bornhop’s habeas application.

EVIDENTIARY

SUFFICIENCY – PROVING PECUNIARY LOSS: Evidence was insufficient to prove that defendant caused at least $100 of pecuniary loss to property owner.

Newsom v. State, No. 03-2100694-CR (Tex. App.—Austin Aug. 25, 2022, no pet.) (mem. op., not designated for publication). Newsom destroyed one of the tires on a vehicle owned by his ex-wife by slashing the tire with a knife, and he was convicted of criminal mischief for destruction of property valued at $100 or more but less than $750, a Class B misdemeanor. On appeal, Newsom argued that the evidence was insufficient to support a finding that his ex-wife suffered at least $100 of pecuniary loss. The appellate court agreed, following the reasoning of the Court of Criminal Appeals in Deas v. State, 752 S.W.2d 573, 575 (Tex. Crim. App. 1988). In that case, the complainant testified that he based his opinion on the fair market value of his destroyed garage door solely on what he had paid to replace the door and did not know the actual fair market value of the destroyed door. The Court of Criminal Appeals concluded that this was insufficient and rendered a judgment of acquittal. In this case, the owner testified to the replacement value of the tire, which exceeded $100, but did not know its fair market value. The court explained that “replacement value can be used to show pecuniary loss of destroyed property only if evidence shows that the fair market value of the property

cannot be ascertained.” The court added, “Replacement cost and fair market value cannot be presumed identical because that would render meaningless the express condition that replacement cost can establish the pecuniary loss only if the fair market value of the property cannot be ascertained.” Here, there was no evidence in the record that the fair market value of the destroyed tire could not have been ascertained. Thus, “the value of the replacement tire is not the authorized measure of pecuniary loss.” The court reformed the judgment of conviction to reflect that Newsom was convicted of criminal mischief involving destruction of property with a fair market value of less than $100, a Class C misdemeanor. AUST INL AW Y ER AL AL

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 court explained that the Uniform Criminal Extradition Act (UCEA) requires that a requisition demand be “accompanies by a copy of an indictment found or supported by affidavit in the State having jurisdiction of the crime...”

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