Austin Lawyer, July/August 2021

austinbar.org JULY/AUGUST 2021 | VOLUME 30, NUMBER 6

Introducing the 2021-22 Austin Bar President: David Courreges

D

avid Courreges began his term as president of the Austin Bar Association on July 1, 2021, along with President-Elect Amanda Arriaga, Secretary Justice Chari Kelly, Treasurer Mary-Ellen King, Immediate Past-President Kennon Wooten, AYLA President Rachael Jones, and AYLA President-Elect Blair Leake, who make up the executive committee for the 202122 bar year. Courreges agreed to be interviewed so the members of the Austin Bar could learn more about their new president and his plans for the organization in the coming year.

AUSTIN BAR: Would you tell us about your background and your family?

COURREGES: I grew up on a small horse farm in China Spring, Tx, which is located in McLennan County outside of Waco. I was raised by my mother,

Deanna, who was the office manager for a Waco-area anesthesiologist, and later became an enforcement officer for the Texas Comptroller. After graduating from China Spring High School (Go Cougars!), I attended McLennan Community College in Waco (Go Highlanders!), before attending the University of Texas at Austin (Hook ‘em!) where I graduated with a double major in government and history, both with an emphasis on “Texas,” and a minor in Danish. Det ere n lang, men interessant historie. While in college I began to work for my hometown State Representative Jim Dunnam, and continued to do so after graduation. I eventually moved to San Antonio to attend St. Mary’s University (Go Rattlers!) for law school and graduate school.

While at St. Mary’s I developed an even greater love for public service through the Student Bar Association, and the myriad of

If I wanted to spend my life helping others solve their problems, I felt I would be best equipped to do so as a lawyer.

I haven’t been disappointed—thanks primarily to the opportunities the Austin Bar has provided over the years.

Austin Bar President David Courreges with his daughter, McKenna, and wife, Erin.

community service opportunities the law school facilitated.

My mother spent most of her youth and all of her adult life raising horses and teaching others to ride. Therefore, I spent most of my childhood and college years raising horses, and competing in the sport of “Eventing,” which is an Olympic sport that combines dressage, stadium jumping, and cross country.

Growing up with horses defined my life. It taught me a different kind of work ethic, empathy for others, and—at least I think—gave me the ability to problem-solve and teach. It also provided me with a lifetime of stories and friends from all across the country and many parts of the world.

My wife Erin and I just celebrated our 15th anniversary.

We are the proud parents of an 11-year-old little girl, McKenna, who is a rising sixth grader and all-around amazing kid. Erin and I met at the Capitol as staffers and continued to work together

as staffers and lobbyists for over a decade. She worked for several state representatives and Speaker of the House Pete Laney before she moved into lobbying. Erin joined me in retirement from lobbying a few years ago and is now focusing on her retail business, “Bits of Courage,” and is also a travel planner. I openly admit that we are a Disney family and have been known to go two or three times a year.

AUSTIN BAR: Why did you want to become a lawyer?

COURREGES: The answer is a short one: Because I wanted to help people. I learned over the course of my youth that I received an enhanced feeling of personal satisfaction when I was able to help others achieve their goals. Once I found my way to the Texas Legislature as a staffer, I found that many of the individuals whom I considered to be continued on page 6

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CONTENTS

AUSTINLAWYER JULY/AUGUST 2021 | VOLUME 30, NUMBER 6 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

CONNECTIONS

1

14 Briefs

ONLINE austinbar.org

Introducing the 2021-22 Austin Bar President: David Courreges

10 Broadus A. Spivey: Practicing Law—Sure Beats

Picking Cotton

19 Opening Statement 21 Third Court of Appeals

11 Reflections on Another Legal Legend Lost:

16 Be Well

Broadus Spivey

12 Austin Bar's Equity Committee Celebrates First

Civil Update

22 Third Court of Appeals

Criminal Update

Anniversary

Taking a Look Back

25 Federal Civil Court Update

27 Judge Brandy Mueller Welcomes Matthew

28 AYLA

McConaughey Back to Project Engage

ONLINE

26 Criminal Court News 30 Practice Pointers

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David Courreges ������������������ President Amanda Arriaga ������������������� President-Elect Justice Chari Kelly ��������������� Secretary Mary-Ellen King ������������������� Treasurer Kennon Wooten ������������������ Immediate Past President

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Rachael K. Jones ������������������ President Blair Leake ����������������������������� President-Elect Sarah Harp ���������������������������� Treasurer Emily Morris �������������������������� Secretary David King ���������������������������� Immediate Past President

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Introducing the 2021-22 Austin Bar President: David Courreges continued from cover

role models—ones who seemed to be in public service for the right reasons—happened to be lawyers.

It seemed like a natural progression; if I wanted to spend my life helping others solve their problems, I would be best equipped to do so as a lawyer. I haven’t been disappointed—thanks primarily to the opportunities the Austin Bar has provided over the years and the many kindred spirits I have encountered and befriended at the Austin Bar. AUSTIN BAR: What was your first job out of law school?

COURREGES: After law school, I found myself back at the Capitol, this time working for State Representative Garnet Coleman as his legislative director and eventual general counsel.

Working for Chairman Coleman, who represents Houston’s 4th Ward and the surrounding areas, was a wonderful experience that exposed me to new issues. It also taught me how to coordinate volunteer efforts in response to natural disasters, something that would help me with future initiatives with the Austin Bar, most notably the Austin Bar’s Wildfire Response Team. Just a few weeks after joining Coleman’s staff, and a few days prior to my wedding, Houston and the Gulf Coast were battered by Hurricane Rita. My job went from handling constituent issues and planning for

6

AUSTINLAWYER | JULY/AUGUST 2021

the upcoming special session, to helping coordinate a disaster response on behalf of my boss and his constituents. During the course of a few days, I coordinated interview requests from nearly every major news outlet in the country.

AUSTIN BAR: What has been your career path from then?

COURREGES: After leaving the Capitol, I entered private practice with a focus on legislative and governmental affairs and administrative law…which meant I really never left the Capitol. I joined DeLeon, Boggins & Icenogle (now DeLeon & Washburn), where I had the great opportunity to work with my uncle and cousin, and developed the legislative affairs practice for the firm. I would later join the Austin-based firm Hay Compere, before opening my own firm, Courreges PC, in 2013.

In 2016, I was approached by members of the UFCU team about the potential of joining the credit union as its first-ever corporate counsel. Until that point, I can say without any doubt that being in-house counsel, much less in a financial institution, had never crossed my mind. However, I was intrigued by this particular opportunity because UFCU had garnered a reputation of being a community partner. This was evidenced by the fact that the

chair of the Austin Chamber of Commerce, Tony Budet; the chair of the Austin Young Chamber, Emmy Hill; and the former executive director of Leadership Austin, Heather McKissick—who was someone who helped me become an engaged member of the Austin community when I first became a young lawyer—were all members of the UFCU family.

After my first interview it became obvious to me that it was time to retire from the lobby and change my career path entirely. There’s not a minute that I regret my decision—especially in odd-numbered years during the months of January through June.

AUSTIN BAR: What has been your biggest accomplishment so far, either professionally or personally?

COURREGES: I’ve had many wonderful opportunities in my career that I could count as significant personal accomplishments. However, the first and most meaningful professional accomplishment was simply graduating from college.

From a very young age my dream was to attend the University of Texas. When my dream became a reality, I didn’t anticipate that learning disabilities I had been unknowingly dealing with most of my childhood would make their presence known in a significant way in college. Yes, I and

every single one of my classmates from first grade forward, knew I had ADHD (with an emphasis on the “H.”) However, it was the underlying causes and treatment methods I was unaware of.

During my second semester, the professor of my 300-person freshman biology class pulled me aside and asked if I had ever been tested for learning disabilities. His reasoning was that I could have semi-intelligent, on-point conversations with him about the materials, but would bomb the written exams. He facilitated the appointment with student services, which would be the meeting that changed my life.

Overnight I went from a solid C/D student to an “A” student.

It was all because someone cared not only about my success in his class, but my success overall.

With the right tools and strategies, college became a brand new and very exciting experience for me. The potential of a professional career became a reality.

AUSTIN BAR: How long have you been involved with the Austin Bar? COURREGES: I’ve been involved with the Austin Bar in some capacity since 2006, when then-AYLA President Shannon Meroney appointed me as the AYLA board’s legislative representative. Since that time I have served on either the AYLA

President David Courreges’s Primary Goals for 2021-22:

David Courreges with his horse, Shadrack.

or Austin Bar’s board of directors in some capacity. I’ve loved every second of it!

AUSTIN BAR: Why would you encourage someone to get involved in the Austin Bar? COURREGES: Why would I not? The potential benefits and experiences through involvement in the Austin Bar are exponential. Being involved in this organization has provided me with more opportunities than I could have imagined as a newly minted attorney. I’ve cultivated lifelong friendships; been mentored by some of the finest teachers, leaders, and role models in our profession; worked on projects that have positively affected generations; and met people who I had read about in history books—all because I was encouraged to be active in the Austin Bar. My life is richer because of my involvement. Plus, it helps me meet my yearly CLE requirements in a fun and highly informative manner.

AUSTIN BAR: What has been the biggest benefit you’ve received from being an active member of the Austin Bar? COURREGES: For me, the opportunities for meaningful mentorship have been invaluable.

I love to learn and am naturally drawn to teachers. My mother began her professional career as a teacher, my aunt was a

teacher, and my uncle is a retired professor. If I wasn’t a lawyer, I would probably be a teacher, too.

In fact, I was an adjunct professor at St. Mary’s University for ten years, and I loved it! Prior to law school, I was extremely lucky to intern for Beverly Reeves, Kim Brightwell, and Mike Marin at Vinson & Elkins. I was a horrible intern. That said, it did not stop me from learning or prevent these three saints from teaching me. Coincidentally, my time at V&E coincided with the end of Beverly’s tenure as president of the Austin Bar. The way she spoke about the work and mission of the organization only reinforced what I know to be true now: The Austin Bar is a collective of community leaders who happen to be lawyers.

As a law student at St. Mary’s University, I had the opportunity to get to know one of the all-time greats in the Austin legal community, former Austin Bar President Karen Johnson. Karen would become one of my biggest supporters. She guided me through the world of the Texas Legislature as a private advocate and gave me chances when others wouldn’t.

As a brand spankin’ new lawyer, I met (now) Judge Karin Crump, then-president of the Texas Young Lawyers Association, who encouraged me to get involved, and gave me the avenue to do so. She had me volunteering in bar projects the very next

Rediscover who we are. As a collective, we have lived through one of the most arduous times in modern history.

It took time to understand and accept what the pandemic was, and it will take time to acclimate to who and what we are today. This is a time to support one another and grow as a community.

Embrace what we have learned over the past year and a half. The old way of doing things is not the only way. We have proved technology works—it works in the courtroom and it works for us as individuals. We can, and must, use what we learned over the past year and a half to our advantage.

Honor what we’ve started. We began several new initiatives last year under Kennon Wooten’s

week and has remained one of my greatest teachers.

Judge Elisabeth Earle, Judge Eric Sheppard, Leslie Dippel, Chris Oddo, the Wonder Sharps (Laura and Lance), Martha Dickie, Chris Oddo, David Chamberlain— all former presidents of the Austin Bar, have each become true friends and mentors—all because people cared about me enough to encourage me to get involved and to teach me. I can never thank them enough, but I do try to honor them by helping and mentoring others as often as I can.

AUSTIN BAR: If you could give your younger self a bit of advice, what would you tell him?

COURREGES: First: The need for work/life balance is real—pay attention. It wasn’t until my daughter was two that I realized I was missing many of the “firsts” and “onlys”—the memories and milestones that matter. At that time I was working 13- to 14-hour days, six days a week,

presidency in the Equity Committee and its Equity Summit, and the History & Traditions Committee. These are important initiatives that deserve our full and continued attention. The journey is long, and we’ve just begun!

Reintroduce ourselves to our members, our future members, and the Austin community. There are too many things competing for our attention. The Field of Dreams mantra of “if you build it, [they] will come” does not work any longer. We have built a beautiful collective in Austin for all to enjoy. We need to remind people it’s here and make sure the next generation of attorneys knows as well. We must, and will, ensure that there is a place for the Austin legal community in our city’s future.

as most young lawyers seem to do. I wasn’t building a relationship with my daughter. The realization changed my life and probably that of my kid. I simply carved time out of my calendar each week to buy her a donut. It was me and her. We told jokes, stories, played games, and sometimes did nothing. We carried on the tradition, rain or shine, for nearly four years, until she started elementary school. I will never regret saying yes to my daughter.

Make time for your family.

Second: Of the many speeches I have heard in my time, the one that resonates the most with me is Senator Kirk Watson’s “10 Rules to Live By.” I’ve heard it live at least a dozen times, read it a dozen more; I’ve heard others give it, have even given it myself.

I consider it mandatory reading for all young lawyers.

AUSTIN BAR: Do you have a particular focus or theme for your term?

JULY/AUGUST 2021 | AUSTINLAWYER

7

COURREGES: I believe this year should be focused on bringing our community back together.

That starts with re-engaging our former leaders and our members, as well as focusing on the future of our profession. In an effort to do so, we’ll be placing a renewed emphasis on several key committees. The Membership Committee is back! It will be led by former Austin Bar President Leslie Dippel, and will be comprised primarily of former Austin Bar presidents. The goal is not only to promote membership in the Austin Bar, but to re-engage leaders who have given so much of themselves in the past and who provide much-needed mentorship to our future leaders.

We will also focus on the Lawyer Well-Being Committee with the hope of developing programming to help all of us as we re-emerge from the pandemic. Finally, we will also team up with the Austin Young Lawyers Association and various community partners to bring a renewed focus on law-related education initiatives in schools.

AUSTIN BAR: What challenges do you think we face as an organization and how do you think we can overcome them?

COURREGES: The challenges we face as an organization are the same as we are collectively facing as a society. Everything we knew as “normal” changed in the matter of just a few months in early 2020.

The petrification it caused lasted

for more than a year, not ceasing for some, and the effects will be felt across generations. The Austin Bar, led by then-President Todd Smith, was forced to pivot all of us through uncertainty in his final months as president. Through the leadership of Amanda Arriaga, Justice Chari Kelly, and other wonderful volunteers, we moved forward with “Couch Bar,” instead of our traditional Bench Bar Conference, which served as a measure of normalcy in otherwise far-fromnormal times. I know for a fact that the 2020-21 bar year was not what Kennon Wooten envisioned her presidency to be, but she rose to the challenge and help create dynamic, timely, and impactful programing that perfectly responded to our current times. This year it seems there is an overarching desire to “just get back to normal,” but it will be impossible to do so.

We have all changed, as will what we will call “normal” over the next year. Our challenge is not to get back to what was normal, but work together to create something better than normal.

AUSTIN BAR: Do you have any new initiatives or programs you’re hoping to start this year?

COURREGES: While I fully expected to introduce several new initiatives this year, I believe that being flexible is paramount. This is not the year to introduce new programming; this year is about reintroducing ourselves to one another and to the Austin Bar, and building upon the founda-

Austin Bar President David Courreges.

tions that have already been laid. the most about the opportunity Our focus will be to build memto be president of the Austin Bar? bership through the involvement COURREGES: I'm most excited of law students and young lawand honored to perpetuate the yers, and opportunities for all of traditions of community, integrity, our members. We will continue and mentorship that all who to facilitate the great work that have served in leadership roles was started last year by the Equibefore me have been building for ty and the History & Traditions the past 128 years. I hope these committees. We will also place traditions will be carried on long special emphasis on the Lawyer into the future.

Well-Being and Law-Related EdAUSTIN BAR: What is a ucation in Schools committees. little-known fact about yourself Of course, we will also strive to that you’d like to share? provide mentorship, education, and added value for all.

COURREGES: AUSTIN LAWYER I’m an introvert.

AUSTIN BAR: What excites you

AL Really.

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AUSTINLAWYER | JULY/AUGUST 2021

Broadus A. Spivey: Practicing Law—Sure Beats Picking Cotton

BY MIKE THOMPSON JR.

No matter your troubles, bear them with grace and remember there are no small cases for clients.

T

he Austin Bar lost a legal legend with the passing of Broadus A. Spivey on May 8, 2021. The obituary in the Austin American Statesman aptly illustrated a life well lived.

Nothing was more extraordinary to me than the fact he tried over 500 jury trials and mentored over 200 law clerks during his career. As one of those former law clerks, a former client, and an opposing counsel, Broadus taught me a lot.

Anyone who knew Broadus could confirm his workday began early and would not be surprised to see a string of emails from him beginning at 4:30 a.m. This was no doubt a result of his agrarian upbringing picking cotton (with his love of simplicity, he would correct me for using “agrarian” rather than “farming”). He expected the same from clerks. Given that work ethic, Broadus also often worked through lunch “lawyering.” Because of his experience, he suggested I learn to eat a big breakfast (at Cisco’s, no doubt) to compensate for missed lunches I could expect while trying cases.

He also recommended a big tip for waitstaff. (That, too, probably at Cisco’s.)

As a boss, Broadus could be demanding, but he also allowed his clerks a great deal of freedom to learn the trade. I worked with him as a law clerk on one case in El Paso against the El Paso Times in the mid-1980s. Broadus included me in many aspects of the case and had me babysit an expert witness who happened 10

AUSTINLAWYER | JULY/AUGUST 2021

TOP LEFT: Broadus Spivey in the Amazon forest, proving he could talk to anyone.

ABOVE: Broadus Spivey, photo credit: State Bar of Texas Archive.

LOWER LEFT: Dicky Grigg and Broadus Spivey.

to be a Pulitzer prize-winning author and journalist. That was amazing for a student at my age.

I remember the experience as if it were yesterday. I know from talking with other clerks that they had similar experiences.

Of course, I suspect “law clerking” at his shop was different than others. I doubt clerks at other offices learned such important things as always loading the toilet paper in the office bathroom like the five-star hotels do (with the paper pulled down from the front). Or where to stand for the TV camera or pictures so your girlfriend and folks could see you (on the right side facing the camera because people read from left to right.)

Or, how to not laugh or smile in those pictures because it must be an important moment in a big case if someone is filming it or taking pictures.

Broadus was a great attorney, as I saw through my eyes as a client. One morning before court while my case was in trial, he had an appointment with his oncologist to review some test results. In retrospect, I can only imagine the stress he was under waiting to get the report and then going to court to represent

me. Yet he never shared or showed it. It was a meaningful experience for me: No matter your troubles, bear them with grace and remember there are no small cases for clients.

He was also a tough adversary.

He had some large verdicts, including one of the largest legal malpractice verdicts in Texas history. He was tenacious, to be sure, but willing to disagree without extreme hostility. He could be your best friend and your toughest adversary. And, he

He could be your best friend and your toughest adversary. And, he was able to do both with a smile.

was able to do both with a smile.

Some civil defense lawyers who defended cases with him would shake their heads saying he always overvalued his cases. What they did not recognize was his true, stubborn respect for underdogs and belief that a case can be a cause. Of course, members of the defense bar made a fair fee defending those cases.

Broadus was a law school classmate of my dad’s and they practiced together in Lubbock.

My dad put it right about Broadus: “He made you feel like you were the only person in the room, as he gave you his full attention. He could see the good in anyone, even if they could not see it themselves.” Quite a high emotional intelligence—honed, no doubt, on the cotton fields he worked through high school.

His example is also shown in the commencement address he gave at the graduation of at least one law school. There, Broadus said what students need to add to their curriculum to succeed were the Four H’s: honesty, humility, humor, and the humanities. What great lessons for all of us. I imagine he would add, “Lawyering sure beats picking AUSTIN LAWYER AL AL cotton.”

Mike Thompson Jr. is an Austin lawyer who clerked for Broadus before the wall came down. (The Berlin Wall.) He is currently Associate General Counsel at the Texas Association of Counties.

Reflections on Another Legal Legend Lost: Broadus Spivey

BY DICKY GRIGG

O

n May 8, 2021, the world lost a truly great man, Broadus Spivey.

Broadus was one of the most respected lawyers in America and a true legal legend. In his trial practice of 57 years, he tried more than 500 cases and handled more than 140 appeals.

His remarkable career included trying a wide variety of cases— car wrecks, products liability, civil rights, divorce, paternity, libel and slander, business litigation, and criminal—including capital murder.

Broadus was always there for people who needed help but could not afford an attorney.

His standard fee: a chocolate milkshake.

Broadus served as president of numerous trial lawyer organizations, including the State Bar of Texas, the Texas Trial Lawyers Association, and the International Academy of Trial Lawyers. He was recognized more than 50 times by peer groups for his ethical and zealous representation of clients.

Broadus was deeply loved and admired by both sides of the bar. Many of his cases over the years were referred to him by counsel from whom he once sat across the courtroom. Broadus

Broadus Spivey, photo credit: State Bar of Texas Archive.

was always there for people who needed help but could not afford an attorney. His standard fee: a chocolate milkshake.

As busy as he was, Broadus always took time to be a mentor. His 80th birthday party was attended by 78 lawyers who had clerked for him over the years—men and women who learned the practice of law from a true master. I had the good fortune to be one of those clerks and to practice

with Broadus for 47 years.

Broadus Spivey may not be in a class by himself, but itLAWYER doesn’t AUSTIN L AL take long to check theAroll.

Dicky Grigg received his undergraduate degree from Texas Tech in 1970, but could not get into Tech Law School. He swallowed his pride, took second best, and attended law school at the University of Texas, graduating in 1973. Grigg is board certified in Car Wrecks and Sore Backs and has dedicated his legal career to determining which car entered the intersection first.

JULY/AUGUST 2021 | AUSTINLAWYER

11

Austin Bar's Equity Committee Celebrates First Anniversary Taking a Look Back

BY JUDGE MAYA GUERRA GAMBLE

The inaugural Equity Summit, attended by more than 350 participants, provided five hours of MCLE ethics credits and thoughtful presentations and topics for continuing conversations and calls to action.

Judge Maya Guerra Gamble has presided over the 459th District Court since January 2019 and was elected to the Austin Bar board of directors in 2020. She is the chair of the Austin Bar’s Equity Committee. Judge Guerra Gamble is an Austin native who has spent her career in public service and hopes to continue to do so for many years to come.

O

ne year ago, Austin Bar President Kennon Wooten began her term by asking us all to be her neighbor. She ended her term with a neighborhood conversation on equity in Austin, in the law, and in our lives: The thought-provoking and

successful inaugural Equity Summit, held on May 14, 2021. One of her first acts as president was to create the Equity Committee, to which I was appointed chair.

I am proud of all the committee accomplished in its first year: • The development of the Austin Bar’s Equity Statement: The Austin Bar Association holds diversity and inclusion to be a core component of our mission to “enhance the legal profession, administration of justice, and our community through education, networking, and public service.” We recognize that the law plays a central role in combating inequality, and we believe that prioritizing equity and diversity and combating systemic bias makes our organization stronger and our profession better.

We strive in all our actions and

initiatives to encourage, support, and celebrate the diverse experiences and voices of our members and the communities we serve, to lift up every attorney in Austin, and to make our community a welcoming place for all people.

• A 21-Day Racial Equity Habit-Building Challenge, in which Austin Bar members signed up for daily emails featuring readings, podcasts, and videos designed to explore and deepen our awareness and engagement in issues of racial equality.

• Four meetings of the Equity Multi-Media Club explored the award-winning documentary “13th,” the books “So You Want to Talk About Race” and “How to Be an Anti-Racist,” and the podcast “This Land.”

• Highlighting diversity and equity in Austin Lawyer

Won’t you be my neighbor?

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AUSTINLAWYER | JULY/AUGUST 2021

through featured articles in the president’s column and in the Equity Spotlight column, with guest authors writing about Hispanic Heritage Month, Holidays Around the World, Black History Month, and Combating Implicit Bias to Retain Minority Talent.

• A fantastic CLE on the history of the Austin Bar viewed through an Equity lens.

• An Implicit Bias Jury Instructions sub-committee developed and refined a jury charge addressing implicit or unconscious bias, which will be employed in Travis County jury charges in the near future.

• The inaugural Equity Summit, attended by more than 350 participants, provided five hours of MCLE ethics credits and thoughtful presentations and topics for continuing conversations and calls to action.

I’m equally proud of the group of committed lawyers and law students who joined the Equity Committee, without whom none of this work would have happened. The leadership team of the Equity Committee, consisting of Judge George C. Thomas, Mindy Gulati, Craig Moore, Ayeola Williams, Drew Williams, Cathy

Neighbors recognize the humanity in each other; they push each other to be better while offering each other grace for their missteps and failures. Neighbors do what is right for each other.

Garza, and former Justice Craig T. Enoch, pushed us and supported us every step of the way.

If you attended the Equity Summit, thank you! If what you heard moved you or inspired you, then I urge you to consider taking that inspiration and turning it into action. What can you do?

• You can respond to former Councilwoman Ora Houston’s call to help our neighbors in East Austin understand and navigate the real estate landscape in these days of gentrification and skyrocketing property values.

• As some of our neighbors lose jobs or face other hardships, you can put your education and power into the efforts of Volunteer Legal Services and literally change the course of someone’s life.

• You can take, or re-take, the Austin Bar’s 21-Day Racial Equity Habit Building Challenge, found on the Equity page at austinbar.org.

• You can read, watch, and learn from the many book, movie, and podcast recommendations also located on the same Equity webpage.

• You can join the Austin Bar’s Equity Committee and help guide its work.

• You can go out into the world, get proximate to the problem, and fight for ways to make things better.

We asked for and received suggestions and topics for the Equity Committee to highlight, explore, and explain in the future. Here are only a few of the excellent suggestions we’ve received, which I believe will be included in

The Equity Committee and all of its work have focused on working to achieve tangible goals and progress. We need all of us to engage in these efforts. Facing inequality, bias, prejudice, unconscious bias, privilege, and power dynamics head-on is scary. You future Equity Summits or CLEs: may fear losing some of your own • A case study of an effective privilege and power. You may campaign to achieve meanfear exposing your own biases ingful positive change (e.g., and damaging your reputation. marriage equality).

When I feel the urge to hold back • Small-group conversations to out of fear, I challenge myself to honestly and openly explore remember what wise people have the topics presented. said about failure: • More pro-bono opportunities.

“Nothing worth having comes • How mental health differences easy.” —Theodore Roosevelt affect equity.

“When we show up, act boldly, • A focus on inequalities in law and practice the best ways to be schools and law firms. wrong, we fail forward. No matter • How some meritocracies and where we end up, we’ve grown legal structures act to hide or from where we began.” —Stacey enforce bias and inequality.

Abrams • Focus on other specific areas Ultimately, neighbors recogof inequality: gender bias, how nize the humanity in each other; different racial groups experithey push each other to be better ence inequality, disability bias. while offering each other grace • How to identify bias in one’s for their missteps and failures. self and how to correct it.

Neighbors do what is right for • A focus on the courtroom each other. and bias in judges, juries, AUSTINLAWYER So, won’t you be my neighand attorneys.

Abor?

L AL

JULY/AUGUST 2021 | AUSTINLAWYER

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BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Alyssa Bisby-Lawson Sam Boyer Heather Dyer

ABOVE: Baumgartner, Balli Torres, Burgess, King, and Nelsen.

LEFT: Obando, Stevenson.

Kyle Ferguson Amy Ilowite Jordan Jarreau Lindsey Laielli Joseph Shaneyfelt Ryan Yergensen Elizabeth Ziegler

AWARDS Karen C. Burgess, of Burgess Law in Austin, was elected dean of the International Academy of Trial Lawyers at the academy’s annual meeting, held virtually in March. Burgess is a trial lawyer, board certified in civil trial law by the Texas Board of Specialization. Her practice ranges from trade secret disputes to securities, contract, insurance, real estate, oil and gas, partnership and fiduciary litigation.

Betty Balli Torres, executive director of the Texas Access to Justice Foundation (TAJF), was presented with The National Legal Aid & Defender Association (NLADA)’s 2021 Innovations in Equal Justice Award in a ceremony on May 6, 2021. The award honored Balli Torres for her decades of contributions to, and support of, the provision of civil legal services at the local, state, and national levels.

NEW TO THE OFFICE The following attorneys have joined the firm of Armbrust and Brown as members: Jon Nelsen, Matthew Baumgartner, and David King. Nelsen’s practice focuses on federal income tax mat-

ters. King’s practice focuses on general civil litigation. Baumgartner is a trial and appellate lawyer.

John Stevenson also joined the firm as an associate. Stevenson's practice focuses on real estate and commercial transactions.

Bollier Ciccone announces the addition of attorney Katherine L. Obando to their family law practice.

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BE WELL

A Happy Lawyer Lessons Learned During Thirty-Plus Years of Law Practice

BY BRAD HOUSTON

Brad Houston is the managing partner of Houston^Fish a boutique civil firm which focuses on bicycle/motor vehicle collisions and wrongful death cases. He is an active member of the Austin Bar’s Lawyer Well-Being Committee.

H

appiness is a common goal of lawyers and non-lawyers alike. One of the most common responses parents give when asked what they want for their children is, “I just want my kids to be happy.” There are many theories on happiness.

Let’s start by recognizing some of the basics of career happiness.

Money can’t buy happiness.

Achieving partner status won’t necessarily make you happy.

Neither will winning a seven-plus figure case. How do we know these principles are true? Partly because we know not all wealthy lawyers, law partners, and big settlement/verdict-winning attorneys are happy. In fact, many are miserable people.

So what is the formula to basic happiness? According to theologian Dr. Doug Fletcher, “Happiness is not a goal you can achieve, it is the byproduct of living a worthwhile life.” There 16

AUSTINLAWYER | JULY/AUGUST 2021

is a lot of truth to that. One afternoon in 1992, I was looking out of my 18th-floor office window in San Diego at the Pacific Ocean. I was an aspiring associate at a top ten California law firm. I had just settled a real estate fraud case for one of the firm’s biggest clients.

It was a big victory and although I was happy for my client, happy for the firm, and excited by the win, there was still something missing. After much reflection, I decided to move my family back to Texas, not only for my career, but so my kids could know my parents and we would be closer to my wife’s parents. My target job was with the Travis County Attorney’s office. I applied at that office, the Attorney General’s office, the City Attorney’s office, and the District Attorney’s office.

Working for a governmental law office offered significant and sometimes complex cases like at a big firm, but without the billable hour lifestyle.

Several months later I gave notice to the San Diego firm that I was resigning to take a position as an Assistant District Attorney in Austin. The DA’s office was my last choice. The truth is, I wasn’t sure I really wanted the job, but it was the vehicle for my exit strategy.

I wasn’t an Assistant DA long before I realized it was the most fun job I had ever had (except for bartending). I loved being in jury trials. I loved my co-workers and superiors. I loved the camaraderie with most of the criminal defense attorneys and the judges.

I tried twenty-four jury trials in twenty-two months. I tried every case assigned to me for trial and volunteered to try a few of the much harder child abuse cases with one of my idols, Gary Cobb.

In addition, I let my superiors know that I would try any case

Brad Houston using his preferred method of transportation.

that other ADAs did not want to try. I did not care about my win-loss record. I just wanted to learn and be the best trial lawyer I could be.

I was more than happy. I felt the same on Monday mornings as I did on Friday afternoons. I loved my job so much, I didn’t mind my starting salary of $39,500, even with two kids at the time and with my wife in law school. We sometimes had to buy groceries with a credit card because I didn’t have enough money in my bank account. My happiness wasn’t just about the fun of trial. There was more.

I truly believed I was doing something worthwhile for my community. I was holding criminals accountable and putting dangerous people in prison. I was “living a worthwhile life.”

I don’t mean to suggest that big firm attorneys or other civil lawyers can’t practice law that is worthwhile. I admire lawyers that help companies create value, which can create jobs, and which sustains individuals and families.

Part of the principle of happiness

and living a worthwhile life is perspective: You must believe in your heart you are doing something that helps people.

Regardless of your practice, you can always pick up a case or two from Volunteer Legal Services of Central Texas. Doing pro bono work is always “worthwhile.”

For financial reasons, I ultimately left my career path as a prosecutor and went back to private civil practice. My happiness didn’t erode much at first, but the erosion was happening.

While working as the partner in charge of litigation at a boutique real estate firm, I quietly began my practice in personal injury.

I found representing victims in injury claims was like helping the victims of crimes as a prosecutor.

I have been practicing personal injury trial law for close to 30 years. About five years into this practice, I decided to weave in my passion for bicycle riding and focus on representing people injured in traffic collisions while riding their bikes.

My practice is AUSTIN LAWYER AL AL fun and worthwhile!

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OPENING STATEMENT

Defining Your Terms (“DYT”) Advice for Creating Shorthand References

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

I

n legal documents, we sometimes need to create shorthand references for recurring names. For example, its not unusual for a legal document to begin like this: Plaintiffs Roger T. Howard (hereinafter “Howard”) and Leticia Howard (hereinafter “Leticia” and, together with Howard, the “Plaintiffs” or “Howards”) brought this action against and Southern National Bank (hereinafter “SNB”) and Green Fields Agricultural Company (hereinafter “GFAC”).

That’s a cluttered paragraph, but it’s not unusual. Sometimes lawyers are guilty of “painstakingly (and painfully) shortening every label on the landscape.

Such a practice invites ridicule, especially after six or seven names have been defined, names that could never be confused with any others anyway.”1 That’s why some legal-writing experts say that creating shorthands with a parenthetical isn’t even necessary.2 These rebels note that journalists and other writers would never do this: President Joe Biden (the “President” or “Biden”) is expected to speak at a Memorial Day observance in Delaware this weekend….

I agree with these experts, but I’ve been unable to persuade many lawyers of this view. They say that there’s typically more at stake in a legal document (rights, duties, money, liberty) than in a news article, and legal documents place a high value on precision. So it’s natural that legal documents would contain shorthand references, and in this column I offer guidelines for creating them.

Drop the archaic word hereinafter. Simply give the full term and then the shorthand, like

this: Southern National Bank (“SNB”).

Some writers drop quotation marks from the parenthetical, asserting that the defining purpose is obvious.3 Others retain them—to clarify that the parenthetical is a defining one and not a parenthetical used for some other purpose. My view: Retaining quotation marks is harmless.

Don’t create a shorthand and never use it—which happens more often than it should. Of course, it results from one of two causes: the habit of shorthanding everything upon first use without checking for subsequent use; and the result of edits that remove later uses. So as part of a thorough edit, do a search for every shorthand you’ve created.

If only one shows up, delete it.

Generally avoid alternative shorthands: Roger T. Howard (“Howard” or “Plaintiff”). It’s like saying, “I’m not going to be careful, so you keep track.” Alternative forms likely arise when the writer use a form document and doesn’t want to search and replace. Do the replacing.

If the client, person, or party refers to itself in a certain way, use that form—don’t make up your own. If Green Field Marketing Company refers to itself as “GFMC,” use that. But if the company refers to itself as Green Field, use that. Don’t create unnecessary initials, although initials have their uses.

Suppose the document mentions Southern National Bank, Southern Mortgage Company, and Southern Real Estate. You could use those full names throughout—it wouldn’t be the end of the world—but you might need initials: SNB, SMC, SRE. And what if two people have the same surname? A common con-

vention is to use given names: Roger and Leticia. Of course, using Ms. Howard and Mr. Howard is fine if the parties are spouses.

Legal writing (“LW”) already abounds with initials and acronyms (“IA”), so when you have a choice, default to words. Naturally, use well-recognized initials (NCAA, CBS) and acronyms (CERCLA, ERISA); otherwise, try to use use words. If the party is Southern National Bank, the short form “Southern” is easier to read than “SNB.” A final tip: Try to avoid larding the opening paragraph with a half-dozen defined terms. It’s actually okay to create a shorthand on the second reference. Use the opening paragraph to set the

stage, provideAUSTIN background, or LAWYER AL AL summarize your purpose.

Footnotes 1. Karen Larsen, The Miss Grammar Guidebook 42 (Oregon State Bar 1994).

2. Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 268 (2003); Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 139 (2002).

3. Louise Mailhot & James D. Carnwath, Decisions, Decisions: A Handbook for Judicial Writing 37 (1998).

JULY/AUGUST 2021 | AUSTINLAWYER

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THIRD COURT OF APPEALS CIVIL UPDATE

>

The following are summaries of selected civil opinions issued by the Third Court of Appeals during May 2021.

The summaries are an overview; please review the entire opinions. Subsequent histories are current as of June 1, 2021.

MANDAMUS: Court grants mandamus relief when trial court denied standing of nonparent to intervene in SAPCR. In re Ramirez, No. 03-21-00145CV (Tex. App.—Austin May 19, 2021, orig. proceeding) (mem. op.). Grandmother intervened in TDFPS’s SAPCR seeking to be appointed child’s managing conservator. Grandmother relied on Family Code § 102.003(a)(9), which grants standing to a nonparent (other than a foster parent) who has exercised “actual care, control, and possession of the child” for a six-month period ending within 90 days of filing a petition. The trial court found that Grandmother’s possession was two weeks short of the statutory requirement and limited the evidence to the few weeks before Grandmother’s possession began. According to the court of appeals, the six-month period does not have to be continuous and uninterrupted. Instead, the test is whether the nonparent served in a parent-like role. The court held that trial court abused

its discretion in applying the statute and in limiting the evidence.

The court granted mandamus relief and directed the trial court to consider additional evidence under the appropriate standard.

TRIAL PROCEDURE: Court affirms appointment of receiver challenged as not neutral.

Hammer v. Hammer, No. 03-1800715-CV (Tex. App.—Austin May 13, 2021, no pet. h.) (mem. op).

Appellant challenged the trial court’s appointment of a particular receiver in a bill of review proceeding. Appellant contended that the appointed receiver was not neutral and disinterested because he had an acrimonious history with Appellant from a prior, unrelated lawsuit. The court of appeals observed that Appellant’s argument was based solely on pleadings and orders from the unrelated litigation.

The documents were included in Appellant’s brief’s appendix but were not before the trial court when it appointed the receiver.

According to the court, its review is limited to the appellate record; it cannot consider documents included in an appendix that were not in the record on appeal.

The court affirmed.

TRIAL PROCEDURE: Court affirms trial court’s refusal to reinstate nonsuited claims.

Lawson v. Morrison, No. 03-1900301-CV (Tex. App.—Austin

May 14, 2021, no pet. h.) (mem. op.). Lawson sued law firm for malpractice and law firm counterclaimed for breach of contract.

Shortly before her deposition, Lawson dismissed her claims without prejudice and did not appear for her deposition. Lawson then filed a motion to withdraw the nonsuit and a motion for continuance of a trial setting. The trial court denied both motions.

Lawson did not appear for trial, and the trial court awarded law firm damages. Lawson contended the trial court abused its discretion in failing to reinstate her claims. According to the court of appeals, the appropriate standard after a Rule 162 nonsuit is whether the trial court’s denial of reinstatement was arbitrary or unreasonable. The court held that it was not unreasonable to conclude that Lawson’s nonsuit sought to avoid discovery. The court affirmed.

EMPLOYMENT DISCRIMINATION: Court holds fact issues precluded summary judgment for employer.

Harper v. PJC Air Conditioning & Plumbing, LLC, No. 03-1900548-CV (Tex. App.—Austin May 26, 2021, no pet. h.) (mem. op.). Harper sued his employer for discrimination, contending that he was terminated because of a medical condition. The trial court granted summary judgment for employer. According to the

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

court of appeals, the evidence established that Harper had notified his employer about his condition and that he was fired soon thereafter. Harper also presented evidence that employer wanted to avoid dealing with Harper’s medical condition. The evidence further showed that employer’s stated reason for termination—customer complaints— was either falsified or inaccurate.

The court held that the evidence created a fact issue on whether employer was aware of Harper’s impairment and whether the asserted reason for termination was a pretext.

The court reversed AUSTIN LAWYER AL AL and remanded.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

Zak Hall is a staff attorney for the Third Court of Appeals. The summaries represent the views of the author alone and do not reflect the views of the court or any of the individual Justices on the court.

>

The following are summaries of selected criminal opinions issued by the Third Court of Appeals from December 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of June 1, 2021.

PRETRIAL HABEAS: State not ready for trial: Defendant was entitled to release because of State’s failure to be ready for trial within 90 days of defendant’s arrest.

Ex parte Tucker, No. 03-20-00372CR (Tex. App.—Austin Dec. 31, 2020, no pet.) (mem. op., not designated for publication). Tucker was

arrested and detained for a felony offense. Eighty-eight days later, the State filed a “Motion to Modify Article 17.151 Deadline.” Article 17.151 of the Code of Criminal Procedure provides that “[a] defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial . . . within . . . 90 days from the commencement of his detention if he is accused of a felony.” The State argued that because of measures the State had taken to mitigate the impact of COVID-19, it was “not feasible for the State to secure an indictment prior to the expiration of the 90-day deadline.” The State contended that the 90-day statutory deadline could be extended or modified because the Texas Supreme Court may “modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor.” Tex. Gov’t Code § 22.035(b). After the 90-day deadline passed, Tucker filed a pretrial application for writ of habeas corpus, seeking release on a personal bond. Following a hearing on the State’s motion to modify and Tucker’s application for writ of habeas corpus, the trial court denied Tucker’s habeas application and granted the State’s motion to modify the 90-day deadline.

The appellate court reversed.

The court observed that the statutory deadline was mandato-

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ry—a defendant accused of a felony must be released if the State is not ready for trial within 90 days after the commencement of a defendant’s detention. Here, the State acknowledged that it was not ready for trial by the deadline. Additionally, Tucker’s pretrial detention was not a “court proceeding” subject to modification by the governor’s emergency order. Thus, Tucker was entitled to release, either on personal bond or by reducing the amount of bail required.

these contentions. Although Work was taken before a magistrate “roughly 75 hours” after she was first arrested, “the record demonstrates that appellant was not in custody for the misdemeanor offense for which she was arrested throughout that seventy-five-hour period.” The misdemeanor charge against Work was dropped during her detention and replaced with felony offenses. Thus, “[t]he record does not establish that appellant was arrested for or in custody for any offense more than forty-eight REQUIREMENT THAT hours before being taken before a ACCUSED BE BROUGHT BEmagistrate for that offense or before FORE MAGISTRATE WITHIN being released from custody for that 48 HOURS OF ARREST: Delay offense, which eliminated the need in bringing accused before to be brought before a magistrate magistrate did not entitle since the ‘accusation against [her]’ defendant to suppression of ceased to exist. Moreover, the statements made to police. record contained “no evidence of Work v. State, No. 03-19-00961-CR a causal connection between the (Tex. App.—Austin Dec. 31, 2020, delay in bringing appellant before no pet.) (mem. op., not designated a magistrate and any of her statefor publication). Work, who was ments to the various investigating convicted of multiple offenses relatofficers.” Regarding Work’s Fourth ed to the death of her two-year-old Amendment claim, the court son, sought to suppress statements concluded that Work was conflating that she made to the police. On “the duties of a magistrate under appeal, Work contended that her [the 48-hour statutory provisions] statements should have been with the judicial probable-cause suppressed because, among other determination by a magistrate reasons, law-enforcement officers required by the Fourth Amendfailed to take her to a magistrate ment.” The statutory provisions within 48 hours as required by concern “only the presentment statute and that the alleged failure of an accused before a magistrate to take her before a magistrate in a in order to apprise the accused of timely manner denied her “the prohis various rights.” There is no tection afforded her by the Fourth “requirement that a probable cause Amendment.” [determination] AUSTIN LAWYERbe made promptly, The appellate court rejected L AL or atAall.”

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AUSTINLAWYER | JULY/AUGUST 2021

FEDERAL CIVIL COURT UPDATE

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The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court.

The summaries are an overview; please review the entire opinions. Subsequent histories are current as of June 7, 2021.

FEDERAL TAX: A payment services company that does not hold customer money for safekeeping is not a bank under the tax code.

MoneyGram Int’l, Inc. v. Comm’r of Internal Revenue, No. 2060146, 2021 WL 2201277 (5th Cir. June 1, 2021). MoneyGram International, Inc. is a payment services company that offers various money transfer services, including the sale of money orders. In 2008, MoneyGram began describing its business activities as “banking” to the IRS. This newly claimed status gave MoneyGram a significant tax benefit. In the wake of the financial crisis, MoneyGram suffered hundreds of millions of dollars in losses associated with large investments it had made in asset-backed securities, including mortgage-backed securities.

Banks are able to deduct such losses against ordinary income, while nonbanks are only able to deduct such losses to the extent they offset capital gains. For

MoneyGram, this would result in a $38 million tax savings.

The IRS disagreed with the deductions, determining that MoneyGram is not a bank. MoneyGram challenged the IRS’s decision in tax court, arguing that its business of selling money orders makes it a bank. The tax court rejected MoneyGram’s challenge. MoneyGram appealed.

The Fifth Circuit affirmed, holding that MoneyGram is not a bank under the Tax Code. To constitute a bank under the Tax Code, an entity must, among other things, fit within the common understanding of the term bank.

The Fifth Circuit held that, at a bare minimum, a bank is an entity that accepts deposits, which the court defined as “funds that customers place in a bank for the purpose of safekeeping that are repayable to the depositor on demand or at a fixed time.” The court concluded that purchasers of MoneyGram money orders are not depositing money with MoneyGram for safekeeping; indeed, the purchaser of a money order is not keeping its money with MoneyGram at all.

CIVIL PROCEDURE: When a case that was removed to federal court based in part on the federal-officer removal statute is remanded to state court, the court of appeals may review the entire remand order on appeal, not just the part of the order deciding the federal-officer removal ground.

PATIENT

BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021). Baltimore’s mayor and city council sued various energy companies in state court for promoting fossil fuels while allegedly concealing their environmental impacts. The defendants removed the case to federal court. In support of removal, they invoked several federal statutes, including a provision allowing removal of any action against an officer (or person acting under that officer) of the United States or of any agency thereof. 28 U.S.C. § 1442(a)(1). The city moved to remand the case to state court.

The district court granted the motion and, in doing so, rejected each of the bases asserted for removal, including the federal-officer removal statute.

The defendants appealed.

Although remand orders are generally not appealable, the defendants cited a statutory exception that permits courts of appeals to review “an order remanding a case to the State court from which it was removed pursuant to” the federal-officer removal statute. The Fourth Circuit held, however, that this exception only permits appeal of the part of a remand order addressing the federal-officer removal statute. The Fourth Circuit affirmed the remand order on that issue but determined that it could not review the other grounds in the order. Because the Seventh Circuit had reached

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the opposite conclusion about the scope of review permitted by the federal-officer removal exception, the Supreme Court granted certiorari.

In a 7–1 decision, the Supreme Court held that the exception permits review of an entire order that remands a case removed under the federal-officer AUSTIN LAWYER AL AL removal statute.

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CRIMINAL COURT NEWS

Criminal Jury Trials Return to Travis County

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.

B

ecause of the COVID-19 pandemic, more than a year has passed since a criminal jury trial was held in Travis County. The district and county court at law judges have announced that the long wait— and, it is hoped, the long backlog of cases awaiting trial—is finally coming to an end.1 JURY SELECTION Jury selection has been scheduled for July 8, 2021 for felony trials.

Because the district courts have a large backlog of cases, these courts are rotating priority from week to week so that each district court has an equal number of weeks during which that court’s cases will have preference. The county courts at law will operate in a similar manner, starting the week of July 19, 2021.

To solve the problem of social distancing, the courts are making some adaptations. For example, jury selection in felony cases will be held at the LBJ Auditorium on the UT campus. This will allow the large (sometimes in excess of 100 people) groups of potential jurors to be in one room while still remaining safely distanced.

The cavernous auditorium may pose challenges for audio, and only the sharpest-eyed lawyers 26

AUSTINLAWYER | JULY/AUGUST 2021

will be able to see the back rows of the venire, but most of the panelists should be able to be seen and heard well enough.

Misdemeanor jury selection poses less of a problem, as a six-person jury can usually be selected from a panel of about 30 people. The new courtroom on the first floor of the Criminal Justice Center will be used for this purpose.

CRIMINAL TRIALS During trials, courtroom configuration will also be modified to allow for distancing. A jury will be seated in the gallery behind counsel tables. Witnesses will, according to preliminary plans, testify from the jury box.

Plexiglass shields will be installed to separate participants, even at counsel tables. All participants will be required to wear face coverings. Submission of electronic exhibits will be encouraged to avoid multiple people handling the same exhibit.

To minimize the number of people congregating around the courthouse during trials, the courtrooms adjacent to the one holding a trial will be empty during that week. Jury deliberations will be held in the empty, adjacent courtroom, rather than in the smaller jury room.

Proceedings will continue to be broadcast live on YouTube, so that the number of people in the courtroom will not exceed the capacity of the socially distanced space but the requirement of open courts will be met.

Priority, particularly in felony cases, will be given to cases where a defendant is incarcerated awaiting trial. With each court having a limited number of priority weeks of cases, and most courts having dozens of “jail cases” on their docket, it seems unlikely that felony defendants out on bond will have trials

Proceedings will continue to be broadcast live on YouTube, so that the number of people in the courtroom will not exceed the capacity of the socially distanced space but the requirement of open courts will be met. scheduled during 2021. However, because fewer misdemeanor defendants are unable to obtain pretrial release, out-on-bond defendants should be able to have jury trials this year in the county courts at law.

Criminal—and civil—lawyers should check the respective county websites, and check with the civil district and county clerks for updates on returning to in-person hearings and trials. The state and local rules and procedures postCOVID are bound to continue changing and evolving as our communities return to normal.

Criminal defense lawyers in Travis County should check the updates on the criminal courts website for any new updates.

All in all, the criminal justice

system is gearing up to return to pre-pandemic processing of criminal cases, but with social AUSTIN LAWYER AL AL distancing in mind.

Footnotes 1. For the latest news on the Travis County District Court in-person court appearances and voir dire guidelines please visit the Travis County website for criminal courts, at https://www.traviscountytx.gov/ courts/criminal.

2. See supra note 1.

Judge Brandy Mueller Welcomes Matthew McConaughey Back to Project Engage

BY BEN ARNECKE

Ben Arnecke is a native Austinite who is the case manager for Judge Brandy Mueller’s Project Engage program in Travis County Court at Law No. 6.

Arnecke assists the youth offenders of Project Engage in completing program requirements and by aiding participants with their individual needs.

O

n May 6, 2021 actor, producer, author, and philanthropist Matthew McConaughey spoke for a second time before the youth offenders in Judge Brandy Mueller’s criminal court during Project Engage’s monthly virtual docket. This time, McConaughey joined court virtually from an Airstream in his backyard. McConaughey spoke before a virtual Zoom courtroom full of excited teens on topics like the importance of challenging yourself and “taking the dare” to make it in life. He also discussed approaching things one step at a time and how having a good attitude makes all the difference.

Project Engage, a Travis County youth offender program, was created by Judge Mueller in 2012 especially for the youngest members of the adult criminal justice system—defendants who are 17, 18, and 19 years of age. “The teenage defendant often falls in a gap that exists within our adult criminal justice system. Teens are

Matthew McConaughey speaks via Zoom to participants of Project Engage.

often too old to have their cases handled as juvenile offenders, yet often too young to be treated as that of an adult” said Judge Mueller. “The State of Texas is one of only a handful of states across the country that has a low age of criminal responsibility, at only 17. A criminal conviction, for anyone 17 and up, will become a permanent part of his or her record. Convictions at a young age often cut off opportunity for jobs, careers, higher education, housing, and even loans when the need is greatest. Project Engage

is a supportive, yet structured, probation with consequences for probation violations, but with the important opportunity to avoid a permanent conviction. Our mission is to allow a teenage defendant to do this by providing the additional support and structure of a probation that emphasizes work, school, and giving back to our community.”

The defendants in Project Engage are considered high-risk for re-offending. A large number of the participants have a family member who is incarcerated or

are themselves former foster kids, having aged out of the system, and are without a consistent parental figure. The program is designed to provide extra support to the defendants and enable them to earn a dismissal. “This specialty court places an emphasis on community involvement, attaining job skills, and furthering education. By partnering with local organizations, Project Engage is able to connect participants to a broad spectrum of services, trainings, and support to meet their individual needs.” said Project Engage defense attorney Michelle Mays.

After he spoke, McConaughey fielded inquisitive questions from the teens about his career, family, and life. “Outside of the excitement his celebrity status brought, the meaningful part of his visit was that what he said resonated our teens,” said AUSTINwith LAWYER AL AL Judge Mueller.

JULY/AUGUST 2021 | AUSTINLAWYER

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AUSTIN YOUNG LAWYERS ASSOCIATION

Meet AYLA President Rachael K. Jones Jones Serves as AYLA President for the 2021-22 Bar Year AYLA: Please tell us a little about yourself.

JONES: I’m an appellate lawyer and single mom to my amazing 11-year-old son, Riley. Some of my favorite things include traveling, the outdoors, adventures, and new experiences. I also love to read, and I’m a supernerd when it comes to words and language. I grew up in East Tennessee, then spent a year in AmeriCorps building houses and leading volunteers with Habitat for Humanity. I attended UCLA for undergrad (including a year abroad in Barcelona) and worked as a paralegal for a couple of years before moving to Austin for law school at UT. My

son was born during my 1L year, and we moved abroad to Edinburgh (Scotland) when I was a 3L to participate in UT’s dual-degree program, so I have an LLM in International Law along with my JD. In addition to AYLA and the Austin Bar, I’m actively involved in my son’s Cub Scout pack and the PTA at his elementary school.

I’m also a member of the Barbara Jordan Inn of Court.

AYLA: What kind of law do you practice?

JONES: My primary practice areas are civil appeals, research and drafting for complex motions, and general civil litigation con-

AYLA President Rachael K. Jones and son Riley.

sulting and support. I previously spent several years practicing plaintiff-side personal injury and medical malpractice law. I’m currently finishing up a temporary contract as a remote staff attorney for the Eighth Court of Appeals in El Paso, which has been a fascinating experience!

AYLA: Why did you first get involved with AYLA? JONES: I joined AYLA with hopes of meeting other young lawyers and finding ways to get involved in Austin’s legal community—and AYLA far surpassed my expectations! When I first started practicing, I didn’t know many people and often felt pretty isolated—I lived in Round Rock, most of my “free time” in law school had been devoted to infant care, I’d spent the last year in another country, and I was working at a fairly small firm that didn’t have many other associates—but it didn’t take long to find a place with AYLA. I’ve met so many wonderful people and have enjoyed so many great educational and service opportunities with AYLA in the past several years.

For any young (or young-at-heart) lawyer who may be contemplating whether to join AYLA, I really can’t recommend it enough!

AYLA: Are you involved in any other Austin Bar programs or committees?

JONES: I am a co-editor of Austin Lawyer, and an Austin Bar/AYLA Leadership Academy graduate (class of 2016). In addition to my involvement with AYLA and its committees, I’m also a member of the Austin Bar’s Communications, CLE, Bench Bar, and History & Traditions committees.

AYLA: If you could impart one piece of wisdom on the firstyear lawyer, what would it be?

JONES: Don’t be scared to put

28

AUSTINLAWYER | JULY/AUGUST 2021

Rachael K. Jones

yourself out there! Or, better yet, embrace the fear and do it anyway! From the early days of law school, so much emphasis is placed on the importance of building connections, but the pressure to “network” can feel intimidating when you’re a brand new attorney—especially if, like me, you're more of an introvert.

But remember: Just because you don’t have much legal work experience yet, it doesn’t mean you don’t have anything to offer! Take some stress out of the process by not worrying too much about creating the “network” that you think you need, and focus more on building genuine relationships based on common ground. You’ll likely find that connections tend to happen naturally, and you’ll have a lot more fun along the way. AYLA events are a great place to start (just saying!), as there are tons of opportunities to connect with other lawyers.

AYLA: What are some challenges facing AYLA in this transitional phase of the pandemic?

JONES: Like so many other organizations across the country, AYLA has seen a drop in membership over the past year.

I am hopeful that the excellent in-person programming and social events we have planned for this upcoming year will encourage people to come back. And for all the lawyers out there who are over

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Community Service Days Event Helps Conduits of Change

T

hank you to the AYLA and Austin Bar members who donated towards this month’s AYLA Community Service Days event, supporting local nonprofit Conduits of Change. AYLA Director Morgan Shell led the effort to collect donations and create the Amazon wish list for members to donate items for the Conduits of

Change dignity bags.

On Saturday, May 22, 2021, AYLA members volunteered and helped put together art kits for children, pass out snack packs, meals, and dignity bags. The rain held off and the Conduits of Change executive director was very thankful for the donations and volunteer efforts.

Over the summer, Conduits

40 (and have been licensed more than three years) but wish they could still join in the fun, there’s great news—you can! AYLA offers a “Forever Young” sustaining membership option that is open to all Austin-area attorneys. We’d love to have you join us!

fantastic job of rising to meet the challenges of the pandemic and serving its members in innovative ways during the past year, but it’s probably safe to say that many of us are ready for a break from Zoom at this point. And as successful as AYLA has been in creatively adapting to the virtual world, many of our signature events and programs just aren’t the same when they’re not in person, and we’re really looking forward to bringing them back! I am personally very excited about getting to know AYLA members whom I haven’t yet had the chance to really meet, as well as reconnecting with old friends.

On that note, I’d like to invite anyone who may be interested in getting more involved with AYLA (or just wants to chat!) for a coffee or lunch, either virtual or in person, anytime. My personal email is rkjones983@gmail.com.

AUSTINLAWYER L AL Please feel free to reachAout!

AYLA: What is an interesting fact about you that people probably don’t know?

JONES: I worked as an outdoor adventure guide in college and led trips all over the Western and Southwestern United States. My all-time favorite trips to lead were canoe-camping excursions in the Black Canyon of the Colorado River in Arizona.

AYLA: What are some of your goals for AYLA next year?

JONES: One of the things I’m most excited about for this year is welcoming all our members back to (COVID-safe) in-person events! AYLA has done a

AYLA volunteers pass out Conduits of Change dignity bags at a recent AYLA Community Service Day event.

of Change will start collecting school items for their backto-school initiative. For more information on the work they

are doing in the community and how to help, youAUSTIN can go to their LAWYER AL AL website at cndsofchange.org.

UPCOMING EVENTS THURS., AUG. 19 AYLA Bar Year Kick-Off Docket Call Come out and help us kick off the 2021-22 bar year.

5:30 – 7 p.m.

Hilgers House, 712 W. 16th St. RSVP to debbie@austinbar.org.

BY JULY 31, 2021 Join AYLA for Trail Bingo Complete at least five hikes from the AYLA bingo card by July 31, 2021 and you’ll be entered into a drawing for a chance to win a gift card!

Sync Strava with your GPS device (iPhone, Android, Garmin, Fitbit, etc.) to track your hike. If you don’t have a GPS device, no problem!

You can manually record your hike on the Strava app. Upload pictures to social media with the hashtags #TrailBINGO and #AYLA and tag @austinyounglawyers on Instagram. The bingo card is located on our website at ayla.org.

JULY/AUGUST 2021 | AUSTINLAWYER

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PRACTICE POINTERS

A Quick Review of the Texas Lawyer’s Creed

BY PAMELA F. DAVIS

Pamela Davis has been a practicing attorney in the state of Texas for 23 years and has been board certified in family law by the Texas Board of Legal Specialization since 2008. She currently works in private practice handling family law, probate, personal injury, and criminal law. Previously, she worked in the General Counsel Division for the Office of the Attorney General’s Child Support Office in Austin and for the Child Support Division in Houston.

C

ongratulations to our newest law graduates and attorneys. My hope for you is that the practice of law will be an exciting journey for you and one in which you will make a difference for the clients and organizations you serve.

For our new lawyers, the Texas Lawyer’s Creed1 is a statement declaring the professionalism expected from lawyers, which was issued in 1989 by the Texas Supreme Court and the Texas Court of Criminal Appeals. It has been years since I read the Texas Lawyer’s Creed. After noticing a decline in our political climate, I decided to reread the Texas Lawyer’s Creed to be reminded of the ideals I hoped to live by when I first became a lawyer 23 years ago.

I’d like to highlight a few quotes from the Texas Lawyer’s Creed that I hope will help you as much as they have helped me.

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AUSTINLAWYER | JULY/AUGUST 2021

OUR LEGAL SYSTEM “A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.”

What an honor and a privilege it is to be part of the “select few” who were able to receive a law degree and pass a rigorous bar exam. What a sense of pride to know that your role as a lawyer is to provide justice for your clients.

Therefore, wear the cloak of lawyerhood proudly as you bring honor to this esteemed profession.

LAWYER TO CLIENT “A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.”

The current political climate often condemns anyone who doesn’t share the same belief as its party core. Politicians, including those who are lawyers, are often terrified of appearing unpopular and losing support.

As attorneys you will eventually have a client who doesn’t think like the “mainstream.” Yet you must put on a brave front and represent them and seek justice for them while highlighting the law that is in their favor.

“I will advise my client that civility and courtesy are expected and are not a sign of weakness.”

Our current political climate appears to believe that if you aren’t screaming, yelling, or cursing, then you are a weak individual and not getting anything done. However, as attorneys, we must remember that kindness is a lost art that we must maintain in our profession.

LAWYER TO LAWYER “Ill feelings between clients shall not influence a lawyer’s

After noticing a decline in our political climate, I decided to reread the Texas Lawyer’s Creed to be reminded of the ideals I hoped to live by when I first became a lawyer 23 years ago. conduct, attitude, or demeanor toward opposing counsel.”

I often see clients who want their attorneys to take on the personality of their clients. Unfortunately, this contentious behavior results in more drama and a prolonged court case. Remaining cordial to opposing counsel could perhaps trickle down to your clients. Regardless, those of us in the bar owe it to each other to remain cordial.

their clients and may use the appeal process when you think a judge didn’t apply the correct law.

“[T]he position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.”

When a person appears before a judge, that person rightfully expects that the judge will know the law and properly research the law “I will agree to reasonable before rendering a decision. The requests for extensions of time black cloak and the position of and for waiver of procedural judgeship is one of honor and the formalities, provided legitimate closest that an individual comes objectives of my client will not to receiving justice. Therefore, be adversely affected.” it’s ideal for judges to rememLife happens—especially if you ber that judgeship is another are a solo attorney without much extension of service to administer backup or staff. So, if opposing fairness to the people who come counsel needs a reasonable before them. amount of additional time to In conclusion, I wish you the prepare a response, determine best in your legal career. May you if it hurts your client to reach uphold the core legal principles an agreement with opposing of creating an atmosphere where counsel. justice may be achieved on behalf of your clients. Obviously, LAWYER AND JUDGE as attorneys, the judge won’t “Lawyers and judges owe each always agree with our facts and other respect, diligence, cansometimes the law just doesn’t dor, punctuality, and protection support the result we hope to against unjust and improper achieve. However, if we embody criticism and attack.” professionalism in our losses and I love how this statement defeats, then we will continue provides that “mutual respect”AUSTIN is to bring honor to the practice of LAWYER owed between lawyers and judgAlaw.

L AL es. It’s a beautiful concept when Footnote attorneys and judges can disagree 1. https://www.legalethicstexas.com/ over the law and facts and even Ethics-Resources/Rules/Texasthe decision rendered, yet still Lawyer-s-Creed.aspx provide respect to one another.

Lawyers must fight zealously for

AYLA BAR YEAR KICK-OFF DOCKET CALL Come out and help us Kick off the 2021-22 Bar Year!

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