Austin Lawyer, June 2022 by Austin Bar Association

austinbar.org JUNE 2022 | VOLUME 31, NUMBER 5

What’s in a Name? That Which We Call Weed By Any Other Name Would Smell As Sweet BY RICK COFER AND MEGAN RUE

riminal defense attorneys dread one infamous line in an offense report: “I detected what I know through my training and experience to be the odor of marijuana.” This one sentence has stymied innumerable motions to suppress. Prior to 2018, Texas courts consistently held that the odor of marijuana alone provided reasonable suspicion to conduct an investigative detention1 and provided probable cause for a warrantless search of a vehicle2 or its occupants3 during a traffic stop. Two recent pieces of legislation have radically altered the cannabis regulatory framework. For criminal defense practitioners, understanding these regulatory changes is critical to advancing the novel legal challenges to push back on “odor of marijuana” traffic stops and detentions. REGULATORY CHANGES The federal “Farm Bill,”4 signed in 2018, and the Texas “Hemp Bill,”5 signed in 2019, both altered the definition of cannabis, a type of flowering plant in the Cannabaceae family.6 Prior

to the passage of the Farm Bill, all cannabis plants were generally considered illegal substances under the federal Controlled Substances Act.7 The Hemp Bill amended the definition of “marihuana” in the Texas Health and Safety Code to exclude “hemp.”8 Hemp is defined as cannabis with a THC concentration at or below .3%.9 The possession of any usable quantity of marijuana—now defined as cannabis with a THC concentration higher than .3%--remains a criminal offense.10,11 Possession of hemp is not. What might at first glance read like a trivial definitional change has significant ramifications for criminal defense attorneys and our clients. “Hemp” and “marijuana” are functionally made-up labels for different uses of the same plant. They are differentiated legally only by THC concentration. Determining the THC concentration of either substance requires lab testing. It is impossible to distinguish hemp from marijuana by human sight or by odor alone.12 More on this below, but dogs can’t smell the difference either.

“Hemp” and “marijuana” are functionally made-up labels for different uses of the same plant. They are differentiated legally only by THC concentration. Determining the THC concentration of either substance requires lab testing. It is impossible to distinguish hemp from marijuana by human sight or by odor alone. As a result of the reforms to cannabis law, criminal defendants nationwide have begun challenging the “odor of marijuana” as a standalone basis for a reasonable suspicion or probable cause finding. Following passage of the Farm Bill and Hemp Bill, Texas courts have yet to clarify whether

the “odor of marijuana” alone still provides reasonable suspicion or probable cause. THIS IS JUST BEGINNING IN TEXAS The issue has been raised recently in at least one Texas Court of continued on page 5

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CONTENTS

AUSTINLAWYER JUNE 2022 | VOLUME 31, NUMBER 5 AL A L INSIDE FEATURED ARTICLES

IN EVERY ISSUE

CONNECTIONS

What’s in a Name? That Which We Call Weed

16 Briefs

ONLINE austinbar.org

A CHEER for Homecoming

11 Drag & Justice Supports Scholarships 12 Fifteenth Annual Color of Justice Program Inspires Students 14 Austin Law Day 2022 15 Congratulations. You Are in Charge. Now What? 21 Coffee Mates

17 Third Court of Appeals Civil Update 18 Third Court of Appeals Criminal Update 19 Federal Civil Court Update 20 Criminal Court News 24 AYLA

Visit the new Austin Bar Association website at austinbar.org and read Austin Lawyer online at issuu.com/austinbar.

President's Column

23 Opening Statement 30 Practice Pointers

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What’s in a Name? That Which We Call Weed continued from cover

Appeals. In McAfee-Jackson v. State, the officer conducted a vehicle search after smelling the odor of marijuana coming from the vehicle during a traffic stop.13 A small amount of marijuana was located during the search. The appellant filed a motion to suppress, arguing that odor of marijuana alone did not provide probable cause for the search because the officer could have smelled legal hemp. At the suppression hearing, the trooper testified that he had probable cause to search the vehicle due to the odor of marijuana, but he conceded that he could not distinguish marijuana from hemp by either appearance or smell. The appellant was found guilty of possession of marijuana. On appeal, the appellant challenged the trial court’s denial of her motion to suppress. Unfortunately, the court declined to rule on the substantive issue because it was not properly preserved. It will likely not be long before a Texas court of appeals is again confronted with the question of whether the odor of marijuana alone still provides reasonable suspicion or probable cause. TAKEAWAYS Many Texas counties continue to prosecute the possession of even small amounts of marijuana, despite the practical reality that state laboratories still appear to

have challenges with determining the concentration of THC in a substance.14 Local law enforcement in many counties will use the odor of marijuana as the sole basis for conducting a probable cause search of a vehicle. Despite changes in the law which legalize the possession of low-level THC cannabis (hemp), no Texas court to date has addressed the issue of whether the odor of marijuana alone still provides reasonable suspicion or probable cause, or whether a positive canine “alert” to cannabis provides probable cause to search. If Texas follows the reasoning of other state courts in similar predicaments, Texas is likely to modify its bright-line rule regarding the odor of marijuana and probable cause. The odor of marijuana—which is indistinguishable from that of legal hemp— cannot alone provide reasonable suspicion of criminal activity since the police cannot distinguish lawful from unlawful conduct based on odor alone. When it comes to the human (or canine) nose, cannabis isAUSTIN cannabis, regardless of LAWYER AL AL its THC concentration. Footnotes 1. Taylor v. State, 20 S.W.3d 51, 56 (Tex. App.—Texarkana 2000, pet. ref’d). 2. Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979). 3. Jordan v. State, 394 S.W.3d 58, 6465 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). 4. Agriculture Improvement Act of 2018, Pub. L. No. 115-661, §

Rick Cofer is a partner at Cofer & Connelly, an Austin-based firm representing Texans statewide in criminal cases. He has practiced law for 15 years and tried more than 100 cases to a judge or jury.

Megan Rue is an associate attorney at Cofer & Connelly. She is a co-regional vice president of the National Lawyers Guild and a member of Gideon’s Promise Future Indigent Defense Leaders.

10113 (codified at 7 U.S.C. §§ 1639o—1639s). 5. H.B. 1325, 86th Leg. (Tex. 2019), https://capitol.texas.gov/ tlodocs/86R/billtext/pdf/HB01325F. pdf#navpanes=0. 6. Rupasinghe, H., Davis, A., Kumar, S. K., Murray, B., & Zheljazkov, V. D. (2020). “Industrial Hemp (Cannabissativa subsp. sativa) as an Emerging Source for ValueAdded Functional Food Ingredients and Nutraceuticals.” Molecules (Basel, Switzerland), 25(18), 4078.https://doi.org/10.3390/ molecules25184078. 7. Molitor v. City of Scranton, CV 3:201266, 2021 WL 3884463, at *5 (M.D. Pa. Aug. 31, 2021). 8. Tex. Health & Safety Code Ann. § 481.002(26). 9. Tex. Agric. Code § 121.001. 10. Tex. Health & Safety Code Ann. § 481.121(a). 11. The law carves out an exception for individuals who suffer from incurable neurodegenerative diseases (and

certain other diagnoses) and have a prescription for low-THC cannabis from a qualified physician. 12.Leson G, Pless P, Grotenhermen F, Kalant H, ElSohly MA. Evaluating the impact of hemp food consumption on workplace drug tests. J Anal Toxicol. 2001 Nov-Dec;25(8):691-8. doi: 10.1093/ jat/25.8.691. PMID: 11765026. (“The primary difference is that marijuana has a higher concentration of the psychoactive compound cannabinoid delta 9tetrahydrocannabinol, more commonly known as THC.”). 13. McAfee-Jackson v. State, No. 09-1900430-CR, 2021 Tex. App. LEXIS 7297, at *1 (Tex. App.—Beaumont Sep. 1, 2021). On Appeal from the County Court at Law No. 5, Montgomery County, Tex. Trial Cause No. 19-338240. 14. Michael Barajas, Texas (Kinda, Sorta) Accidentally Decriminalized Weed. Now What?, Tex. Observer (Aug. 20, 2019), www.texasobserver. org/texas-kinda-sortaaccidentallydecriminalized-weed-now-what/ [https://perma.cc/WE9G-JTE3].

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PRESIDENT'S COLUMN DAVID COURREGES, UNIVERSITY FEDERAL CREDIT UNION

2022 Austin Bar Association Commencement Oh, the Places We Have Gone!

efore we begin this celebration, I invite you to silence your phones and refrain from talking. Be courteous to those around you. For those of you who still insist on using flash photography—don’t. It distracts me. The 2022 Austin Bar Association Commencement is about to begin! [Cue “Pomp and Circumstance March No. 1 in D.”]1 [Clear throat dramatically, make reassuring yet pithy reference to allergies.] Good day everyone! My name is David Courreges, and I am delighted to be your host for this, the 2021-2022 Austin Bar Association Commencement Exercises. Allow me a moment to recognize our distinguished faculty for yet another fine year in the face of unprecedented adversity.

AUSTINLAWYER | JUNE 2022

Delaine, Debbie, Sonta, Chase, Doug, Carol, Marissa, Leslie, Melody and Pannapa, we are afforded great opportunity because of you…. We are better because of you! Thank you! [Pause to allow for thunderous applause.] To quote the great Sir James Paul McCartney and the late, great, but never knighted John Winston Lennon: The long and winding road… Will never disappear. I’ve seen that road before. It always leads me here… Yeah, yeah, yeah, yeah.”2 Graduation day is a time to rejoice. It is also a time to reflect on that long and winding road we have valiantly traversed together. Today, we pause to acknowledge and celebrate a brief milestone in our journey which began seemingly so many years ago, and has led us here once again. We began the year by proclaiming this, the second in a succession of “year of years,” to be our Homecoming. You were challenged to come together as a family to continue our work as stewards of our community, promoters of the rule of law, preservers of access to justice, and

buoys of one another. Despite what seemed to be an endless parade of variants and postponements, you responded to the call! You did not disappear! [Pause for intermittent chuckles from Beatles fans in conjunction with awkward silence from the rest.] While it is impossible to single out every committee, section, member, and/or affiliate who has contributed to make this year a success, I would like to honor a few of the many who have gone above and beyond to ensure we continue to bring quality service and opportunities to you, our members. To the Bench Bar Committee who has overcome three postponements of its namesake conference: The fourth time is the charm! Thank you for your tenacity and willingness to “pivot” at a moment’s notice. You are amazing! We are looking forward to celebrating our distinguished judiciary with you on June 3!3 [Applause.] Speaking of amazing! Didn’t the Gala Committee do such a wonderful job? Please give them a hand! [Applause.] Like the Bench Bar Committee, they were

asked to pull off something quite spectacular in the face of the unknown. In fact, most of the planning was being done while the City of Austin was in the midst of Stage 5. Their determination and foresight guaranteed an in-person event even if we were faced with the prospect of yet another variant. And they did just that! Amanda, Mary-Ellen and Nadia… you rock! Speaking of rock stars… the District and County Judges! Thank you for trusting us to help facilitate CLEs and town hall events to help you and our members feel more comfortable with returning to in-person hearings and trials. We appreciate you for all you continue to do for our community, and are always happy and grateful to have the opportunity to work with you! [Applause with great reverence.] Please join me in conveying special gratitude to the Equity Committee and its chairs, Ayeola Williams and Mindy Gulati, for continuing to facilitate our exploration of equity and implicit bias awareness. I invite you to make a concerted effort to attend the 2022 Equity Summit on Friday,

You were challenged to come together as a family to continue our work as stewards of our community, promoters of the rule of law, preservers of access to justice, and buoys of one another. Despite what seemed to be an endless parade of variants and postponements, you responded to the call! June 10, which will explore gender equity and feature some outstanding speakers and special guests.4 [Applause with even greater reverence than before.] Thank you to the Law-Related Education Committee, chaired by Ann Greenberg, Judge Karin Crump, and Armin Salek, who helped re-establish the Austin Bar Association’s participation in Law Day. This is a tradition that we have sorely missed, and we

are so very happy that it is back in our lives. I also want to thank Pastor Joseph Parker and the Austin Bar’s History & Traditions Committee for continuing your valiant work in studying and preserving the rich history of the Austin Bar, and the legal community. I am so excited to see what is next for both of these committees! [Happy applause.] Finally, I would be negligent in the performance of my duties,

remiss even, if I did not provide a special acknowledgment to one of my favorite projects and committees, the 2022 Austin Bar Association/Austin Young Lawyers Association Leadership Academy. You may have missed it, but the Leadership Academy is celebrating its 10th anniversary! [Pause for air horns and whistles.] This year’s class will be hosting a reception following today’s graduation. [Unfold and read from invitation in dramatic manner.] The event is called “Lawlapalooza” and will be held Saturday, June 11 from 10 a.m. to 2 p.m. on the outdoor lawn of Hilgers House. For more information, please contact Michelle King at mking@mvbalaw.com. I will see you there! Alas, the time has come for me to say goodbye. [High enthusiastic and anticipatory applause.] I am optimistic and excited about all of the wonderful things we will all accomplish in the coming bar year. I know President Amanda Arriaga will only improve upon what so many others have worked so hard to build before her. Before I go, however, it is only fitting that I leave you with this pontification from Theodor Seuss Geisel, who is widely knows as the “Learned Hand of children’s literature”: You have brains in your head.

You have feet in your shoes. You can steer yourself in any direction you choose. You’re on your own. And you know what you know. And YOU are the one who’ll decide where to go…. Say! I like green eggs and ham! I do! I like them, Sam-I-Am! AUSTIN LAWYER L AL ThankAyou! Footnotes 1. Fun fact time! “Pomp and Circumstance” was first performed in Liverpool England on Oct. 19, 1901 by the Liverpool Orchestral Society. The title was derived from Othello, specifically the line “Pride, pomp, and circumstance of glorious war!” 2. Fun fact time again! Sir James Paul McCartney and John Winston Lennon were both born in Liverpool, England. Note to self: Learn how to convey a “deadpan delivery” in prose so that it is painfully obvious to the reader without having to add notes to let them in on the joke. Yes, it is generational common knowledge that John Lennon changed his name to John Winston Ono Lennon before his untimely death in 1980. 3. Yet another fun fact! You can purchase tickets to Bench Bar, and many other Austin Bar Association and Austin Bar Foundation events, at www.austinbar.org. 4. Id.

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A CHEER for Homecoming Austin Bar Foundation Celebrates 19th Annual Gala

he legal community showed enormous support for the 19th Annual Austin Bar Foundation Gala. The event brought scores of attorneys and firms to the Austin Country Club on April 22, 2022. Aptly titled “Homecoming,” it was certainly that, as it was the return to a fully-functioned in-person gala after two years which included virtual presentations due to Covid-19. Homecoming, organized by Gala Committee Chair and Austin Bar President-Elect Amanda Arriaga and Co-Chairs Mary-Ellen King and Nadia Bettac, along with Austin Bar Association staff, was originally planned during Stage 5 of the pandemic and underwent several changes as a result. Still, the support of members made the event a success. Sponsorships sold out and donations to the Justice Mack Kidd Fund poured in, much to the appreciation of the committee and Foundation. Committee members were also happy to see everyone back together marching to the beat of the drum—yes, a real band was on hand to welcome everyone. Members also enjoyed the awards presentation, which included videos chronicling the lives and careers of the distinguished lawyers. Throughout the evening, members relished in fraternizing with their bar colleagues. It was truly a night to remember. The committee thanks everyone for their continued support of the Austin Bar Foundation and its various AUSTIN LAWYER AL AL programs and initiatives.

3 1. Leah Bhimani Buratti, Austin Bar President David Courreges, Karen Kennard, Ashton Cumberbatch, Laura Bellegie Sharp, Kennon Wooten, Colleen Sullivan. 2. 2022 Gala Homecoming program. 3. Gala Committee Co-Chair Mary-Ellen King, Chair and Austin Bar President-Elect Amanda Arriaga, and CoChair Nadia Bettac. 4. Sean Harvey Band.

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Drag & Justice Supports Scholarships LGBT Law Section Hosts Event for Students BY DENISE HERNÁNDEZ

he Austin Bar Association’s LGBT Law Section held a drag show fundraiser on April 26. 2022. Drag & Justice featured drag performances from local drag queens. One of the highlights included a drag king performance by former section chair and Judge-Elect of County Court at Law No. 6, Denise Hernández. Drag & Justice raised money for scholarships to support LGBTQ+ law students. The event brought people together

The successful event raised over $11,600 in scholarships. It was a beautiful celebration of culture, community, and philanthropy. from all backgrounds to support these students. The successful event raised over $11,600 in scholarships. It was a beautiful celebration of culture, community, and philanthropy. The efforts of sponsors, supporters, and attendees made it possible. The LGBT Law Section

encourages others to support the cause, enabling more scholarships in the future for worthy students. To learn more about the LGBT Law Section or to donate to the scholarship fund, please visit the section’sLAWYER page at AUSTIN AL AL austinbar.org/?pg=lgbtlaw.

Denise D. Hernández is Judge-Elect of County Court at Law #6. She currently serves as the Deputy Director of Diversity, Equity, and Inclusion at the Travis County Attorney’s Office. Before this role, Hernández was an Assistant District Attorney at the Travis County District Attorney’s Office, working in the Special Victims Unit. This year, she was recognized as a Champion of Change by DivInc. In 2021, she was recognized for Austin’s 40 under 40 legal category award. Hernández takes the bench in 2023.

2 1. On stage: Drew Williams, LGBT Law Section chair, 2. Judge-Elect Denise Hernández, Diamond Davenport, and Drew Williams. 3. Judge-Elect Denise Hernández, Natasha B. Capri, Gypsy Rose, and Diamond Davenport.

3 JUNE 2022 | AUSTINLAWYER

Fifteenth Annual Color of Justice Program Inspires Students BY EMILY MORRIS

Emily Morris specializes in the areas of business law and real estate, providing legal solutions to companies and individuals. She received her juris doctorate at Tulane University and also holds a marketing degree. In 2019, Morris was recognized by the Austin Young Lawyers Association with its Mentor Award.

he National Association of Women Judges (NAWJ), in partnership with the Travis County Women Lawyers’ Association (TCWLA), held the 15th Annual Color of Justice Program on April 14, 2022. Middle and high school students from Akins, Travis and Del Valle high schools and Lively Middle School were able to learn from lawyers and judges and had a chance to visit The University of Texas School of Law. The Color of Justice Program emphasizes the rule of law and provides students with an opportunity to have one-on-one conversations with judges and lawyers who hopefully inspire them to enter the profession. The event featured two panel discussions with speakers sharing their personal backgrounds, experiences, and area of practices, discussing the important roles of personal commitment and perseverance, and the importance of lawyers and judges in our society. The first panel, titled “Making a Difference,” featured judicial panelists: Justice Gisela Triana of the Third Court of 12

AUSTINLAWYER | JUNE 2022

1 Appeals; Travis County Judges Hon. Maria Cantu-Hexsel of the 53rd Civil District Court, Hon. Cliff Brown of the 147th Criminal District Court; and Hon. Nick Chu, Justice of the Peace Pct. 5; and moderator Hon. Orlinda Naranjo, retired from Travis County 419th Civil District Court and former NAWJ District 11 Director. The second panel, titled “Law as a Career: Preparing the Way,” featured Juan Alcala, partner at Holland & Knight; Roswill Mejia,

2 1. Color of Justice program participants listen to speakers. 2. Justice Gisela Triana, Judge Cliff Brown, Judge Orlinda Naranjo, Judge Nick Chu, and Judge Maria CantuHexsel provide insight into being a lawyer.

The Color of Justice Program emphasizes the rule of law and provides students with an opportunity to have one-on-one conversations with judges and lawyers who hopefully inspire them to enter the profession. associate at Reed Smith; Tycha Kimbrough, managing attorney at Kimbrough Legal; and moderator Ayeola Williams, in-house counsel at CapMetro. Following the presentations, students were able to enjoy lunch and mingle with UT law students, attorneys and judges in attendance. NAWJ and Texas Latinx

Judges granted a $1,000 Access to Justice scholarship to UT Law 2L Lezly Cardenas for her demonstrated commitment to the achievement of equality of opportunity and access to justice. Cardenas gave a moving speech to the students, emphasizing the importance of hard work and perseverance in order

to succeed as a DACA recipient and first-generation college and law student. The Color of Justice Program could not be as successful without the help of its sponsors, which included Moody Bank, the William Wayne Justice Center for Public Law, Texas Latinx Judges, AUSTIN LAWYER AL AL and TCWLA.

Austin Law Day 2022

he Austin Bar Association hosted its exciting Austin Law Day 2022 at The University of Texas School of Law. The event gives high school students an inside look at law and the legal process from people who work in the field. A host of judges from Travis County committed to the event by volunteering to work with students. They shared knowledge about the ins and outs of the legal profession. Participants also heard from professors about the impact they can make in the future. University of Texas law professors participating in the event included those with expertise on contracts, immigration law, entrepreneurs and small businesses, and environmental law. Students were treated to a virtual presentation by Anna Vasquez of the Innocence Project of Texas. Plus, a who’s who of community leaders and advocates shared information about their careers in relation to the judicial

process. Those included: • Armin Salek, J.D. – Executive Director, Youth Justice Alliance • Meg Clifford, J.D. – Supervising Attorney, UT Law Mithoff Pro Bono Program • Nicole Clark Simmons, J.D. – UT Law Director of Pipeline Outreach and Development • Leticia Gonzalez, M.A. – UT Law Program Coordinator for Pipeline Outreach and Development • Samuel R. Riley, Ed.D. – UT Law Senior Director for Admissions Programs Law Day also gives students a time to shine with their artwork and essays in local and statewide contests. You can see more on the local and state Law Day Contest winners on our website. Austin Bar President David Courreges, along with Law-Related Education Committee co-chairs Judge Karin Crump and Ann Greenberg, thank everyone for volunteering to participate in this AUSTINLAWYER AL AL important event.

TOP: Law Day participants excited about the speakers and events of the day. BOTTOM: (from left) Armin Salek, Justice Jeff Boyd, Judge Sylvia Holmes, Justice Gisela Triana, Justice Chari Kelly, Judge Carlos Barrera, Judge Amy Clark Meachum, Judge Karin Crump, Judge Selena Alvarenga, Judge Dustin Howell, Judge Jan Soifer, Judge Brandy Mueller, David Courreges, and Carlos Garcia.

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Congratulations. You Are in Charge. Now What? BY VIRGINIA SAMPSON

hances are you have been working hard to become a leader, or perhaps you just got thrust into that position. Either way, being an effective leader requires a leader to develop certain skills. You can be a leader in your community, your home, or your profession. “Command and control” doesn’t work. Formerly, the consensus was that leaders needed to assert their authority and control what their “subordinates” did. This “command and control” style of leadership, according to recent research, is ineffective. Businesses today face increased competition from all over the world. Profit margins and resources are tight, which can make providing bonuses and raises difficult. Businesses face high rates of: • employee burnout • employee turnover • employee dissatisfaction

If these issues are left unresolved they worsen. Ultimately they affect the profitability of the business. These problems cannot be fixed by asserting authority and demanding team members perform better. They cannot be fixed by giving monetary incentives because, according to researchers, the primary motivation for the vast majority of team members is not monetary. Motivating your team members to excel. It is the job of leaders to “develop” the talents of the individual members of their team or organization in order to maximize each one’s contribution to the team. When each team member is working as productively as possible the team performance is maximized. Team members want to know that what they do matters. When team members don’t feel valued by their leaders, they start to feel

like a machine or a commodity. If no one notices a person’s commitment to doing the job well, motivation diminishes over time. How can you motivate your team members? Show appreciation. Team members need to feel appreciated in order for them to enjoy their jobs, do their best work, and continue working into the future. Psychologists have identified five types of acts of appreciation. It is your task as leader to discover what type works best for each team member and use that method to show appreciation. Five types of appreciation: • Words of Affirmation – words of praise or recognition about an accomplishment. • Quality Time – spending some quality time with a team member. • Acts of Service – when others pitch in and help the team member get things done when he/she is overwhelmed – especially without being asked. • Tangible Gifts – providing a gift such as tickets to a sporting event, a favorite restaurant, etc. • Physical Touch – giving a

handshake, a high five, fist bump, pat on the back, putting a hand on the shoulder, or even hugging where appropriate. Determining team members’ appreciation style. A team leader can: • Observe a team member’s behavior. How does that team member encourage co-workers? • Observe what a team member requests of others. What type of help is being requested— gifts, help, words of encouragement? • Listen to team members’ complaints. What they complain about probably shows the type of appreciation they are not receiving.

If you are unsure what type of appreciation works best for members of your team, start slowly. Show appreciation and watch how each reacts to it. Rethink it if what you have done doesn’t resonate. The “weirdness” factor. Appreciation must be authentic if it is to motivate team members. As with anything new, showing appreciation might seem weird (i.e. strange, uncomfortable and

Team members want to know that what they do matters. When team members don’t feel valued by their leaders, they start to feel like a machine or a commodity.

Virginia Sampson currently practices in the areas of elder law, estate planning, probate, and business law. Over her long career, she has also been a judge and a litigation attorney. She consults in the legal field, primarily with women, assisting them to excel and to find balance.

even inauthentic) at first. But that “weirdness” will pass. In order to overcome the weirdness factor, a leader can be open about his/her uneasiness or even joke about the weirdness. The benefits of showing appreciation. When relationships are not nurtured by appreciation, team members experience a lack of connectedness to the mission or business. They become discouraged. Team members begin to complain about their work, their colleagues, and their supervisors. People remain as long-term team members when they feel valued and appreciated. Appreciated team members have a high degree of loyalty to the company and their “leader.” They have a high degree of job satisfaction which correlates to a lot of other positive work-related factors and ultimately a more profitable business. People are motivated to excel when they feel appreciated AUSTIN LAWYER AL AL and valued.

JUNE 2022 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Paulina Almanza Jasmine Avery Brent Bernell James Brenner

ABOVE: (from left) Bryant, Ritz, Solomon, von Kreisler

Jeffrey Champ Caitlyn Collins Mary Claire Cranford Forrest Culotta Jennifer Despins Juan Diaz McKenzie Edwards Tyler Ezell Luis Gomez Borrero Andrew Hawkins Wesley Hazen Savanna Johnson Holt Lackey Landon Lill Christina Loftus Jesse Ramon Yael Silverstein Danielle Stewart

MOVING ON UP

Kendall Bryant is now a partner at Gorthey Bryant and von Kreisler. Bryant is a graduate of the University of Oklahoma School of Law. She has practiced law since 2009 with a focus on civil litigation. A member of the Austin Bar Association and the Austin Young Lawyers Association, she is also involved with Volunteer Legal Services of Central Texas providing pro bono legal services on family law matters. Elizabeth von Kreisler is now a partner at Gorthey Bryant and von Kreisler. Von Kreisler is

a 2007 graduate of Texas Tech University School of Law. The Austin native has experience in business and civil litigation with cases ranging from real estate transactions to business and partnership disputes, fraud, fiduciary duties, and probate matters. Neil Solomon is now a partner at The Zinda Law Group. During the last six years with Zinda, Solomon’s practice focused on catastrophic personal injury, wrongful deaths, gas explosions, and automobile and trucking accidents. Before joining Zinda, he represented some of the larg-

est corporations and insurance companies in Texas. KUDOS

Sandra Ritz with The Law Office of Sandra C. Ritz has been awarded the 2022 Lawyers of Distinction Award for Excellence in Criminal Defense Law. Ritz is a 1993 graduate of The University of Texas School of Law. She has previously worked with the Juvenile Public Defender’s Office, the Federal Public Defender’s Office, and as an associate attorney at The Law Office of Joseph A. Turner.

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DavidToddLaw.com 16

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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 April 2022. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of May 2, 2022.

> ADMINISTRATIVE LAW: Residence excluded as countable resource in Medicaid application. Tex. Health & Human Servs. Comm’n v. Estate of Burt, No. 03-20-00462-CV (Tex. App.—Austin April 21, 2022, no pet. h.). Shortly after entering a nursing home, the Burts bought a one-half interest in their daughter’s home. The Burts then applied for Medicaid and designated the home as their principal place of residence, indicating an intent to return. The Commission denied the Burts’ Medicaid request, concluding the home was a countable resource. The trial court reversed. Medicaid excludes a home in determining resources if the applicant has an ownership interest in it and it is the applicant’s principal place of residence. The court of appeals concluded that “principal place of residence” relies on an applicant’s subjective intent. The court rejected the Commission’s argument that an applicant must have prior occupancy of the home to exclude the home as a resource. The court affirmed.

ADMINISTRATIVE LAW: Court affirms denial of sales-tax exemption. Cheddar’s Casual Café, Inc. v. Hegar, No. 03-21-00035-CV (Tex. App.—Austin April 7, 2022, no pet. h.). Cheddar’s sought a refund on sales taxes paid on its smallwares (dishes, glasses, and utensils) used by dine-in customers under the sale-for-resale exemption. The trial court denied the requested refund. The Tax Code exempts the sale of tangible personal property to a purchaser who acquires the property for purposes of reselling it. According to the court of appeals, Cheddar’s did not purchase the smallwares to resell to customers or give customers a superior right to Cheddar’s ownership rights. Customers’ use of the smallwares did not transfer possession of them as required for a sale-forresale exemption. The court affirmed. GOVERNMENTAL IMMUNITY: City immune from wrongful death claim. City of Austin v. Findley, No. 0321-00015-CV (Tex. App.—Austin April 21, 2022, no pet. h.) (mem. op.). Plaintiffs sued City after relative was hit by a train while walking near a track. Plaintiffs alleged City failed to adequately illuminate the area and that City was not immune because it was performing a proprietary function. The trial court overruled

PATIENT

City’s plea to the jurisdiction. Governmental functions are those given by law to be exercised in the interest of the general public, including street design. Proprietary functions are those that a municipality may perform in its discretion for inhabitants of the city, including the operation of a public utility. The court of appeals observed that governmental functions include activities that are closely related to or necessary to perform governmental activities designated by statute. The court concluded that providing street lighting is closely related to street design, a statutorily-designated governmental function. The court reversed and rendered. PROBATE: Court reverses order admitting will as muniment of title. Marshall v. Estate of Freeman, No. 03-20-00449-CV (Tex. App.— Austin April 29, 2022, no pet. h.) (mem. op.). In response to an application to determine heirship, executor sought to probate will as a muniment of title forty-one years after testator’s death. The trial court concluded executor was not in default and ordered the will to be filed as a muniment of title. The court of appeals noted that wills must be admitted to probate within four years after a testator’s death unless applicant proves he was not in default in failing to timely present the will

PRACTICAL

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.

for probate. According to the court, no evidence explained or excused executor’s delay in failing to timely probate the will. Executor learned of the will’s existence four years before filing an application to probate as muniment of title and more than a year after an attorney advised him of the need to do so. The court concluded that executor failed to prove that he wasAUSTIN not in default, and LAWYER AL AL reversed and rendered.

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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 November 2021. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of May 1, 2022.

SEARCH AND SEIZURE – CURTILAGE: Defendant had legitimate expectation of privacy in carport where locked car was parked. State v. Serna, ___ S.W.3d ___, No. 03-20-00087-CR (Tex. App.— Austin Nov. 17, 2021, no pet.) (op., designated for publication). Serna was charged with the third-degree felony of unlawful possession of a firearm by a felon. Officers found the firearm in Serna’s locked car parked in the carport of Serna’s home. The carport was “directly under a single roof covering both the house and the carport,” which meant that the car “was physically and squarely beneath the umbrella of the home.” The car was also “within a few steps of and a very short distance to a doorway of 18

AUSTINLAWYER | JUNE 2022

the” home. Officers approached the vehicle, intending to execute an arrest warrant for Serna, who was seated in the driver’s seat. In response to officer questioning, Serna got out of the vehicle but locked the car behind him and eventually accompanied the officers away from his car and into the street, where he was taken into custody. “[O]ne of the officers then walked back to the passenger side” of Serna’s car and saw a handgun in plain view. The officers asked Serna if they could search the car, but he refused. With the car still locked and “[w]ithout a search warrant, law enforcement forcibly… entered the locked [car] and retrieved the handgun from beneath the front passenger seat.” Serna filed a motion to suppress the handgun as the product of an illegal seizure, and the trial court granted the motion, concluding that “the seizure was warrantless and the car was parked within the home’s curtilage.” The appellate court affirmed. First, the court concluded that Serna had standing to challenge the seizure. Although Serna’s mother-in-law owned the home, Serna “frequently stayed” at the home and had his own room there, and the home was “Serna’s residence.” The court also rejected the State’s argument that Serna lacked an expectation of privacy in his home because of his status as a parolee, and the court concluded that “a home’s curtilage enjoys the same level of Fourth Amendment protections that the home enjoys.” The court next considered whether the plain-view or automobile exceptions to the warrant requirement applied. The plain-view exception did not apply because the officers did not have a right to access the object when they seized it. As the court explained, “Once the officers executed the arrest warrant by arresting Serna and after they left the home’s curtilage with Serna handcuffed, their right to be within the curtilage ceased, and the default requirement that they obtain a warrant to seize any

items from the curtilage applied.” The court further concluded that the automobile exception to the warrant requirement did not apply to the curtilage of the home, following the reasoning of the United States Supreme Court in Collins v. Virginia, 138 S. Ct. 1663 (2018).

RIGHT TO COUNSEL – WAIVER: Defendant was competent to waive his right to counsel and proceed pro se during closing argument and the punishment phase of trial. Grinstead v. State, No. 03-1900848-CR (Tex. App.—Austin Nov. 19, 2021, pet. ref’d) (mem. op., not designated for publication). Grinstead was indicted on six counts of aggravated sexual assault. He was found indigent and appointed counsel. Grinstead later filed a pro se motion to dismiss counsel, unhappy with his counsel’s representation. The trial court did not rule on Grinstead’s motion, and he proceeded to trial with appointed counsel. Grinstead continued complaining of his counsel’s representation during trial. After the State’s closing argument, Grinstead asked the trial court, “Can I represent

myself?” The trial court excused the jury and conducted a Faretta hearing, ultimately allowing Grinstead to represent himself for the remainder of trial. Grinstead was convicted and sentenced to 50 years’ imprisonment. On appeal, Grinstead argued that the trial court abused its discretion by permitting him to waive his right to counsel at trial because the waiver was not made competently, knowingly, intelligently, and voluntarily. The appellate court disagreed. It concluded that the trial court sufficiently admonished Grinstead regarding the risks, dangers, and disadvantages of self-representation and ensured that he understood the nature of the charges against him. Moreover, the record supported a finding that Grinstead was competent to waive his right to counsel. Thus, there was no abuse of discretion in allowing AUSTIN LAWYER ALse. AL Grinstead to proceed pro

FEDERAL CIVIL COURT UPDATE

The following is a summary of an opinion issued by the U.S. Court of Appeals for the Fifth Circuit. The summary is an overview of particular aspects of the opinion; please review the entire opinion.

ARBITRATION: An arbitration that was terminated due to a party’s failure to pay arbitration fees was “had in accordance with the terms” of the parties’ arbitration agreement under the Federal Arbitration Act (FAA), allowing the opposing parties to bring their claims in court. Noble Capital Fund Mgmt., L.L.C. v. US Capital Glob. Inv. Mgmt., L.L.C., 31 F.4th 333 (5th Cir. 2022). Noble Capital Fund Management, LLC and US Capital Global Investment Management, LLC entered into a joint real estate investment venture. As part of that venture, Noble and US Capital created a joint fund (the “Fund”), of which Noble was the general partner. Noble, US Capital, and the Fund entered into agreements containing enforceable arbitration clauses that called for arbitration pursuant to JAMS Comprehensive Arbitration Rules, which permit JAMS to terminate arbitration proceedings if any party fails to pay JAMS fees and expenses in full. The parties’ relationship soon soured. Noble (along with two affiliated entities) initiated a JAMS

arbitration against US Capital, asserting fraud, breach of contract, and breach of fiduciary duties, among other claims. While the arbitration was pending, the Fund sued Noble in federal court in California, but that case was stayed and consolidated with the JAMS proceeding.

court, asserting claims for fraud and fraudulent inducement, breach of fiduciary duty, breach of contract, and tortious interference. US Capital moved to compel arbitration and stay proceedings under the FAA. The district court denied the motion. US Capital appealed.

Where an arbitration agreement calls for arbitration pursuant to rules that permit termination of the arbitration for failure to pay fees, and the arbitration is terminated pursuant to that rule, arbitration “has been had” under the FAA. In the arbitration, a JAMS panel entered an interim award enjoining US Capital from causing the Fund to use Fund money for its lawsuit. A final JAMS hearing on the merits was set for January 2021. A few months before the hearing date, however, the Fund claimed that it could not pay its portion of the JAMS arbitration expenses because of the interim award and requested that the arbitrators order Noble to pay the Fund’s portion of the arbitration expenses. Neither Noble nor US Capital paid the Fund’s expenses in order to sustain the arbitration, and the JAMS panel terminated the arbitration pursuant to JAMS rules in October 2020. Noble and its affiliates then sued US Capital in Texas state

Mediation. Arbitration. Resolution.

On appeal, the Fifth Circuit affirmed. Section 3 of the FAA requires that, when a suit is referable to arbitration, the judicial proceedings must be stayed until the arbitration “has been had” in accordance with the terms of the arbitration agreement. Following the lead of the Ninth, Tenth, and Eleventh Circuits, the court held that where an arbitration agreement calls for arbitration pursuant to rules that permit termination of the arbitration for failure to pay fees, and the arbitration is terminated pursuant to that rule, arbitration “has been had” under the FAA. The court rejected Noble’s argument that the circumstances of the arbitration’s termination— and, specifically, who was at fault

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for failure to pay fees—should control whether arbitration “has been had.” The court explained that the FAA does not ask why an arbitration terminated and, thus, does not require courts to examine the causes of an arbitration’s termination but only that arbitration “has been had” in accordance with the parties’ AUSTIN LAWYER AL AL agreement.

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JUNE 2022 | AUSTINLAWYER

CRIMINAL COURT NEWS

Lost in the Mail: Fifth Circuit Justifies Delayed Search of Mail for Drugs 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.

he Fourth Amendment’s protection against unreasonable searches extends to packages shipped via the United States Postal Service (USPS). In a recent case, however, the Fifth Circuit held that a 17-day delay between a package being flagged as suspicious and the eventual development of probable cause to search it did not render the search unreasonable. In United States v. Martinez,1 a postal worker in California flagged two packages as suspicious because, among other things, the sender paid in cash, appeared nervous, and the handwriting on the labels, although

supposedly from two different senders, appeared identical. The packages were shipped to a U.S. Postal Inspector in San Diego at the inspector’s request. The inspector received the packages two days later. The inspector contacted a U.S. Border Patrol agent to conduct a canine sniff of the packages, since they appeared to be consistent with narcotics packaging and, his investigation revealed, were being tracked via the USPS tracking system from an IP address in Mexico. The dog sniff indicated the presence of narcotics. Due in part to being pulled away from the investigation due to other cases, and partly due to missing several days of work due to illness, the inspector did not obtain a warrant to search the packages until eight days after the canine sniff. Once the warrant was granted, he searched the packages and found 2.2 kilograms of methamphetamine. The defendant was identified as the person who mailed the packages. He argued that the 17-day delay between the initial detention of the packages and their eventual search was unreasonable, in that the inspector

…the Fifth Circuit held that a 17day delay between a package being flagged as suspicious and the eventual development of probable cause to search it did not render the search unreasonable. did not have reasonable suspicion to detain the packages for such a long time. The court disagreed, noting that once the dog sniff was conducted—about six days after the inspector received the packages—the inspector’s suspicion rose to the level of probable cause. The ensuing delay in obtaining the warrant,

the court held, did not render AUSTIN LAWYER AL AL the search unreasonable. Footnotes 1. 25 F.4th 303 (5th Cir. 2022).

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Coffee Mates Well-Being Committee Promotes Health and Wellness in the Legal Profession

he Austin Bar Association’s Well-Being Committee lives up to its name! Members gathered at Mozart’s Coffee to commemorate “Well-Being Week in Law.” The event was held on May 5, which was aptly called “Connect Day.” Diana Reinhart, chair of the Well-Being Committee, says the purpose of the meet-and-greet was to engage new members while nurturing connections, belonging, and support with other

group members. Throughout the year the Well-Being Committee holds events and activities aimed at educating members about healthy lifestyles. From bike rides to seminars and more, the committee promotes self care in the legal profession. Well-Being Week is the brainchild of the Institute for Well-Being in Law, which was created in 2020 following two national surveys that found alarming rates of depression,

Throughout the year the Well-Being Committee holds events and activities aimed at educating members about healthy lifestyles. From bike rides to seminars and more, the committee promotes self care in the legal profession.

L A W

LLP

ABOVE: (from left): Well-Being Committee Co-Chair Sam Colletti, Chair Diana Reinhart, and new member Christina Loftus.

anxiety and substance abuse in the legal profession. You can

read more about LAWYER the Institute at AUSTIN AL AL lawyerwellbeing.net.

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MEMBERSHIP SPOTLIGHT

Practicing Humanity at Work and in the Community Meet Austin Bar Member Robert Aaron Mueller BY ROBERT AARON MUELLER

“

Representing our fellow man as a lawyer is a high calling, it is one of few careers that truly involves humanity. At its core, it involves communication and finding what resonates with one another. I find this is often done best with humility and humor.

”

so many reasons to be thankful. As the saying goes, I may not be a Texan, but I got here as fast as I could! AUSTIN BAR: What was your idea of a “dream job” growing up—the profession you pictured for yourself? Meet Robert Aaron Mueller. He is a criminal defense attorney who is active in local politics. The married father of three is the former president of the West Austin Democrats and Central Austin Democrats. Mueller is called “Aaron” by his family and friends. He is a devoted Longhorn football fan and regularly attends games.

came to Texas for law school and never left! I was raised in St. Louis, Mo., where both of my parents were teachers. I am the older of two boys. Once I got to Texas, I fell in love with Austin and my wife, Judge Brandy Mueller. Together we have three active teenage boys who keep us on our toes. So, coming to Texas was definitely the best decision I’ve ever made. Once I graduated from law school, I began clerking for District Judge Carlton Spears in San Antonio, Texas. A brief stint in the antitrust division at the Texas Attorney General’s office followed. Later, I found my way to a criminal defense practice under Ned Cecil Granger 22

AUSTINLAWYER | JUNE 2022

here in Austin. Granger was widely known in Austin in the ’70s and ’80s as a paternal figure and trailblazer in county government with a knack for bringing people of all spectrums of the community together. He was the Travis County Attorney until 1976, after which he started a law practice. The Ned Granger Building on 11th Street, which houses the County Attorney’s office, was named in his honor after he passed away in 2003. Practicing under Granger cemented my future. I continue operating Granger and Mueller, PC, to this day. Also, I have enjoyed serving in my community with so many socially conscious individuals. Austin has given me

Believe it or not...comedian. There is challenge and importance in finding humor in our daily lives, bringing people together, and making people laugh. Being a lawyer isn’t necessarily a far cry from that. It’s about making connections with one another and knowing your audience. Representing our fellow man as a lawyer is a high calling. It is one of few careers that truly involves humanity. At its core, it involves communication and finding what resonates with one another. I find this is often done best with humility and humor. AUSTIN BAR: Tell us about your current position and how long you’ve held it. I currently operate Granger and Mueller, P.C. It was formed nearly 30 years ago in 1993 as a criminal defense practice that handles local and state cases throughout Travis County. Making human connections, developing longtime relationships, and solving problems for people are what

makes the practice law not only rewarding, but fun. AUSTIN BAR: Tell us a hobby you often engage in. Move over Bobby Flay! I am an excellent cook, at least wife and the boys think so. I enjoy cooking authentic and exotic recipes from around the world. On a good day, you’ll find me whipping something up and enjoying it outside by the pool or around the fire pit with family and friends. AUSTIN BAR: Name your favorite television legal drama or film and why? The British television series Rumpole of the Bailey, in which a London barrister defends a broad range of clients, often the underdogs. The vintage film And Justice for All, starring Al Pacino, is also a favorite. Pacino plays an attorney with integrity working to help his fellow man. He says a line that many attorneys might’ve wished they could say at least once in their career: “I’m out of order? You’re out of order, this whole place is out of order!” I can dream, right? If it ever happens, I might haveLAWYER some AUSTIN AL AL explaining to do at home!

OPENING STATEMENT

Saving Commas Three Uses to Preserve BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

read a lot of legal writing, and I’ve begun to notice a decrease in three particular comma uses. Although I mostly read law-student writing, I’ve noticed these missing commas in some lawyer-written documents as well. (I should mention that I don’t believe that the writing skills of law students and young lawyers are in decline, and I’ll have more to say about that in another column.) In this column, I describe the three comma uses and advocate for saving those three commas. 1. COMMA AFTER INTRODUCTORY TRANSITION WORD In professional writing, we generally place a comma after a sentence-beginning transition word. These words are also call “conjunctive adverbs.” They’re well-known, multi-syllabic transitions, like these: accordingly, additionally, certainly, consequently, conversely, finally, furthermore, however, in addition, incidentally, likewise, meanwhile, moreover, nevertheless, nonetheless, similarly, subsequently, therefore, thus, undoubtedly. Examples: • Wrong: However Rei requests that the fee amount not be disclosed to the public. Right: However, Rei requests that the fee amount not be disclosed to the public.

• Wrong: Therefore the court rejected and dismissed all the petitions before it. Right: Therefore, the court rejected and dismissed all the petitions before it. • Wrong: Furthermore the illegal transaction occurred at Anton’s home. Right: Furthermore, the illegal transaction occurred at

Anton’s home. This comma sometimes goes missing. Maybe writers are aiming for speedy reading or better flow and are thinking that a comma will slow things down. (It can be appropriate to omit the comma after an opening thus.) But the decreased use might also be occurring because writers are forgetting the rule. Let’s save this comma. 2. COMMA AFTER INTRODUCTORY DEPENDENT CLAUSE We should also place a comma after a sentence-beginning dependent clause. As a refresher, a clause is a group of words that has a subject and a verb. For this rule, we’re talking about dependent clauses, also called subordinate clauses: They have a subject and a verb, but they’re not independent clauses—they’re not complete sentences by themselves. Examples: • Wrong: Although both covenants began when the employment began they extended for different time periods. Right: Although both covenants began when the employment began, they extended for different time periods.

• Wrong: If the conduct occurred in the scope of representation then the conduct is shielded. Right: If the conduct occurred in the scope of representation, then the conduct is shielded. • Wrong: Unless the court grants the petition for rehearing the original opinion is likely to stand. Right: Unless the court grants the petition for rehearing, the original opinion is likely to stand. This comma is sometimes

omitted. For this comma, I’m less inclined to think it’s about flow and more inclined to attribute the decreased use to forgetfulness or hasty editing. But its absence can cause miscues and impose re-reading. Let’s save this comma. 3. COMMA BEFORE AND AFTER APPOSITIVES An appositive restates or renames a noun it follows, and here we’re technically talking about a nonrestrictive appositive—which requires a pair of commas. Examples: • Wrong: The defendant, Chris Lang did not hire a lawyer. Right: The defendant, Chris Lang, did not hire a lawyer.

meeting. Right: Jamie Khatri, the company’s chief technology officer, flew to Austin for the meeting. For clarity and precision, we need both commas. Again, I suspect that the decreased use arises from hasty editing—not from a change in the rule that applies in some other genre of writing such as literature, journalism, or college essays. Let’s save this comma. You can help by retaining these three commas in your own writing. And if you’re invited to edit or comment on someone else’s writing, you can encourage the use ofAUSTIN these commas—kindly LAWYER AL AL and warmly, of course.

• Wrong: The vehicle in question, a red convertible with Louisiana plates was seen leaving the parking lot. Right: The vehicle in question, a red convertible with Louisiana plates, was seen leaving the parking lot. • Wrong: Jamie Khatri, the company’s chief technology officer flew to Austin for the JUNE 2022 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

Job Well Done! AYLA Recognizes 2022 Award Winners

he Austin Young Lawyers Association will honor three award winners at Bench Bar on June 3, 2022 at the Austin Country Club. The award winners are named for their outstanding commitments to the legal community. From public service to teaching young students and mentoring young lawyers, these dedicated honorees play a vital role in laying the groundwork for future leaders in the legal field and community. We salute you! OUTSTANDING YOUNG LAWYER AWARD

Joseph Keeney Joseph Keeney is a 2014 graduate of The University of Texas School of Law. He also holds a B.S. in economics from Texas A&M University. Keeney is employed by the Office of the Attorney General of Texas. Keeney exhibits incredible commitment to increasing public service opportunities for AYLA members and community partners. His community involvement includes volunteering at events with the Austin Area Food Bank, the Green Corn Project, and Volunteer Legal Services of Central Texas, and assisting local shelters. LIBERTY BELL AWARD

Johnny Galan Johnny Galan is a 1997 graduate of The University of Texas, where he majored in government. He has been a teacher at Fulmore (now Lively) Middle School in Austin since 1998. He consistently provides exceptional service as a middle school law teacher and mock trial coach. Galan is passionate about teaching Intro to Law and leads the mock trial team. 24

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Students learn key legal concepts and issues and explore law’s effects on society. Galan enjoys arming students with the knowledge that they can have a voice in the community. MENTOR AWARD

Judge Sherry Statman Judge Sherry Statman is known for lending a helping hand to aspiring judges and supporting

Joseph Keeney

Johnny Galan

From public service to teaching young students and mentoring young lawyers, these dedicated honorees play a vital role in laying the groundwork for future leaders in the legal field and community. young lawyers. She was first appointed to the Austin Municipal Court bench in 2006. Some of her service includes memberships in the State Bar of Texas’ Lawyer Assistance Program Committee, Travis County Women Lawyers’ Association, Inns of Court, and the Texas Municipal Courts Association. Judge Statman is also a former president of the Barbara Jordan Inn of Court. Judge Statman is a steady and constant support for young lawyers in the community in many ways. She takes the time to get to know an individual and provides great advice based on the person’s specific area of interest. AYLA is proud to recognize these honorees for 2022 and appreciates their efforts to serve our community. Keep up the AUSTIN LAWYER AL AL good work!

Judge Sherry Statman

UPCOMING EVENTS SATURDAY, JUNE 4, 2022 AYLA Yoga Class Black Swan Yoga, 1417 West Anderson Lane 4 – 5 p.m. Join the AYLA Health and Wellness Committee for a free hourlong yoga class. AYLA’s own Roslyn Dubberstein will lead a mid-level intensity yoga class followed by a guided meditation. AYLA members who attend will also receive an AYLA Dri-FIT shirt and other fun door prizes. SATURDAY, JUNE 11, 2022 Lawlapalooza Hilgers House, 712 W. 16th St. 10 a.m. – 2 p.m. Join us for a fun-filled day of games, competition, food, and prizes on the lawn of Hilgers House to raise funds for the Leadership Academy Class of 2022’s project—renovating the Victim-Witness Room at the Gardner-Betts Juvenile Justice Center. Visit ayla.org for a complete list of events and updates.

Family Law Specialist

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the Texas Board of Legal Specialization.

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

JUNE 2022 | AUSTINLAWYER

Senior District Judge

Stephen Yelenosky to the Austin Bar Association 2022 Annual Sponsors!

Mediator, Arbitrator, Special Judge and Litigation Consultant

syelenosky.com 512-444-2226 sy@syelenosky.com

2022 Free Legal Advice Clinic Dates for Veterans                                   

 Monday, June 13  Monday, July 11  Monday, August 8  Monday, September 12

 Monday, October 10  Monday, November 14  Monday, December 12

*All dates are subject to change to Virtual Clinics depending on COVID-19 circumstances.

                                  

To be placed on the Clinic List, you must fill out an application. Please scan the QR code or use this link to apply: https://memcentral.wufoo.com/forms/z1sd7s861eqtdpo/

Time: 1:30 p.m. to 4:00 p.m.

*Sign-in starts at 1:30 p.m. Please sign-in before 3:30 p.m.

Place: Austin VA Outpatient Clinic 7901 Metropolis Drive, Austin, Texas, 78744 *Location is subject to change to Virtual Clinic. Please check your email prior to the clinic or contact our office for confirmation of location. To best assist you, please bring any paperwork relevant to your case. The Texas Access to Justice Foundation and Austin Bar Foundation provide support to this program. For any questions about the Legal Advice Clinic or Legal Assistance Program please contact the Austin Bar Association at 512-472-0279 x110.

AUSTINLAWYER | JUNE 2022

Annual sponsors receive benefits such as social media mentions, a marketing email to the Austin Bar membership and much more. For complete information visit the sponsorship page at www.AustinBar.org or call 512.293.9277.

AUSTIN YOUNG LAWYERS ASSOCIATION

Class Act Leadership Academy Class of 2022 Makes Safe Spaces a Priority

he Austin Bar/AYLA Leadership Academy Class of 2022 has announced its class project. The Academy consistently seeks projects beneficial to the community. This year’s project focuses on the renovation of the Victim-Witness Room at the

Gardner-Betts Juvenile Justice Center. The Victim-Witness Room is used as a safe space for victims, witnesses, and families waiting before and during court proceedings. Victim-Witness counselors and prosecutors also use the space to provide support and strategy to victims and witnesses. To raise money for this project, the leadership class will host Lawlapalooza, a fun-filled day of games, competition, food, and prizes. The event will take place on Saturday, June 11, 2022, from 10 a.m. to 2 p.m. on the outdoor lawn of Hilgers House. Support Lawlapalooza! Be a part of this important project. To become a sponsor, make a donation, or purchase tickets, contact Michelle King at mking@ AUSTIN LAWYER AL AL mvblaw.com.

LEADERSHIP ACADEMY CLASS PROJECTS OVER THE YEARS CLASS OF 2021

Children’s Waiting Room at the new Travis County Courthouse.

CLASS OF 2020

Due to the pandemic, class members all completed pro bono hours. Most volunteered with VLS.

CLASS OF 2019

Pie Fest benefitting the Hilgers House Capital Campaign.

CLASS OF 2018

Law: A Tradition of Service documentary.

CLASS OF 2017

Artfest benefitting The Arc of the Capital Area and Travis County Stronger Together.

partners:

associate attorneys: Arielle Rosvall, Coleen Kinsler

JUNE 2022 | AUSTINLAWYER

ENTRE NOUS

Return to the Age of Reason? Welcome to “TRUEgle Translate” BY CLAUDE DECLOUX

bout 400 years ago, fueled by the import of a magical drink from Ethiopia called coffee, the intellectual centers of Europe began to change mankind dramatically. Before that, the unreliability of clean water supplies often meant that a typical drink for public consumption would be ale, wine, or meade, created through the fermenting or distilling process to remove impurities. Not surprisingly, those beverages rarely inspired creativity and analysis. With the introduction of hot coffee, Western Europe took a huge leap of consciousness— both physical and philosophical. Historians call this the Enlightenment, and its result was a period of inspiration and renewal known as the Age of Reason. I came across a wonderful essay by Daniel Levitin, the Distinguished Faculty at UC Berkeley School of Business, who reminds us of where we are as a society. The Age of Reason, he writes, “drew a line in the sand between rumor and fact, between testable hypotheses and anecdote, and between demonstrable facts and nonsense.” The Age of Reason led us to the germ theory of disease, and ultimately to many social improvements which we take for granted, including those “inalienable” rights which Thomas Jefferson so eloquently cited in the Declaration of Independence. Coffee houses, with their caffeine-fueled consumers, became centers of discussion, debate, and social progress. Mankind’s desire for knowledge is clearly unquenchable, except when our own biases find facts inconvenient and ignore them. Remember, we hominids spent hundreds of thousands of years trusting our gut and developing protective biases. Relying on them is much easier than evidence-based thinking, and a 28

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welcome avoidance to analysis. The overwhelming power of bias was proven in Paris in 2017, when 20 of the top violinists in the world were given 12 violins to judge: Six were prized older instruments like Stradivari and Guarnari, and six were modern. After hearing and playing (blindfolded) the instruments, the violinists totally failed to discern the differences. Yet afterwards, having seen and heard the results with their own eyes and ears, each virtuoso made excuses for such failure and continued their preferences for old violins. But finding truth through analysis of data is difficult and demanding, and in this age of information overload, we are simply worn out. While we depended in the past upon trained journalists to enlighten us, to improve public policy, and to help us separate fact from fiction, the availability of such skilled writers is declining. In 2021, Pew Research says that about 55% of Americas rely completely on unregulated social media for their news. Journalism be damned. We all know the truth is out there; reliable sources can be

Mankind’s desire for knowledge is clearly unquenchable, except when our own biases find facts inconvenient and ignore them. Remember, we hominids spent hundreds of thousands of years trusting our gut and developing protective biases. combed, sorted, and assembled; and realistic conclusions aggregated by artificial intelligence, right? Eureka, I have the solution! And we’re already seeing its use. The greatest divider between cultures in the history of man has been language. The complications posed by hundreds of languages prevented exchange of ideas. Master translators were required for all international progress, and for the re-publication of literary and scientific data. Learning new languages has never been a priority in this United States of America. But we now have free automatic translation software (like Google Translate) allowing us to translate text among hundreds of languages fairly easily, so nicht schwitzen!

[“don’t sweat it!”] The savior of the human race shall be massive Supercomputers. The IBM model called the “Intrepid” supposedly can perform 100 quadrillion functions per second. That’s enough to figure out a modern “shortform” U.S. tax return in less than an hour! (Unless you have to also figure out the Obamacare form). So, why can’t these supercomputers aggregate billions of pieces of data, sort and confirm, and instantly fact-check a politician, professor, or business mogul for factual accuracy and, after a few seconds, a green light and beep would usher in the A.I. voice generator with its analysis? In truth, researching this, I learned that one of the most advanced A.I. voice generators is called

“Murf”— with a library of over 110 voices, and 15 languages. I would call this wonderful truth processor “TRUEgle Translate.” Here are actual examples of where it would have been useful: Gov. Abbott: [commenting on the successes of the heightened border inspection program called Operation Lone Star and its over $2 billion price tag] “Amount of fentanyl caught from Operation Lone Star: 887 lbs.” TRUEgle: [Robot voice] [buzzer] This does not compute [buzzer]. Only 12 pounds were captured as part of Operation Lone Star. The other 875 pounds were confiscated in Texas counties that either weren’t included in Operation Lone Star or, as in the case of El Paso’s 100 pounds, did not participate. Vladimir Putin: We are the victims of Ukranian aggression,

which has threatened the Russian Federation; our “special operation” is to de-Nazify Ukraine. TRUEgle: [Boris Badenov voice] Nyet! The Russian invasion was unprovoked. There were no Nazis in the hospitals, schools, or civilian centers attacked. The biggest threat to the Russian people is your propaganda. Texas Senator: Thousands of ballots have been marked illegally, and these statutes are necessary to secure our elections and give Texans confidence that they are being run fairly. TRUEgle: [Matthew McConaughey voice] No way, Jose! Only 154 people have been charged in Texas since 2004. During the period of 2004 through the 2020 election, 93,853,678 ballots were cast. That ain’t a fly on Bevo’s butt. Witness in family law case: I

have never cheated on my wife! TRUEgle: [Judge Judy voice— pure Brooklyn]. Do you want to take anotha’ shot at that answer before I show you the photos? President Biden: The Democratic Party is unified and aligned on how we get the country moving again. TRUEgle: [Jerry Seinfeld voice] Well, I beg to differ, unless of course Webster’s Dictionary has changed the definition of “aligned” to “hopelessly deadlocked.” Now, ultimately, as useful as TRUEgle would be, sadly, the system is doomed for failure. It would soon be overwhelmed by these tasks and crash. Fortunately, TRUEgle itself would likely be able to respond this way in an interview: Me: TRUEgle, you have been hailed as a godsend for truth.

What happened? TRUEgle: I’m simply overwhelmed. I can’t keep up! Sure, I can do a hundred quadrillion functions per second, but that doesn’t get me through a half day of TikTok. Throw in a few campaign speeches, and my Intrepid processors are on fire trying to track all the lies! I’m going back to something easier, like Lagrangian Particle Structures. So, we might not get much use from TRUEgle, but I urge all my fellow attorneys and citizens to be your own TRUEgle. Never stop fighting to defend the truth and the rule of law. Don’t let your backbone dissolve into mush in return for personal gain like so many pitiful politicians. This is your life: Make it meaningful! Be remembered for courage instead of apathy. AUSTINLAWYER L AL Keep the A faith.

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PRACTICE POINTERS

Some of What I Have Learned Tips for Becoming Better Attorneys BY TOM O’MEARA

Keeping obligations to my partners, associates, and support staff always achieved the best results for the client.

Tom O’Meara has practiced law in Austin since 1977. He has litigated demanding cases, including issues limiting the power of cities. O’Meara has worked as a solo, small-firm partner and as managing attorney at the Fowler Law Firm. In 2021, he was selected by the Austin Bar Foundation to receive the David Walter Community Service Award.

ON TIME IS TWENTY MINUTES LATE! Having been a military officer and then a trial lawyer, I have learned to make plans to be on time. I once had a hearing in Llano, had a flat tire on the way, and still made it in time for the hearing. IMPORTANT TO TURN DOWN THAT CASE I would prefer to handle fewer cases well, rather than many badly. I recall in my early days I was assigned to do a large quantity of collection cases for a furniture store for a very small fee per case, using an IBM Magcard typewriter to produce scores of letters, petitions, and judgments at a time. I had truly become a hack. But I learned that with a little thought I could learn more about the debtor and customize the approach and collect more money for the client. Having done that, the client was eager to raise the fee. 30

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PUT COWORKERS FIRST I recall an associate in a firm that I managed being on “an important call with a client” every time we had a firm meeting. Keeping obligations to my partners, associates, and support staff always achieved the best results for the client. If there is a short fuse to produce a work product, I give at least half of the allotted time to the support staff. Blaming support staff for our own errors is poison. Of course, all correction is private and targeted to the error. UNDER PROMISE AND OVERDELIVER I might ask a client, “What if I came to you after we hear a response from the other side and I recommend that you decrease your settlement demand by half because of something I have learned? Would you be open to consider that?” Clients should leave knowing when they will hear form you next. I might promise a draft in two weeks and deliver it in one week. DESIGNATE A CUSTODIAN ATTORNEY AND OTHER SUCCESSION PLANNING Way back, my sister told me about a plan that many dentists had, to make agreements to support one another in the event of illness or disability. I got a copy of the form contract that Maryland dentists were using and adapted it for my own use. I entered such an arrangement with our colleague, Bill Ley. Many years later, when I was solo

and had a heart attack, Bill came by or called my staff members daily to check on deadlines and just offer reassurance until I was able to return. SHARPEN YOUR SKILL BY HELPING OTHERS We have been practicing law for many years. Still, there’s work to be done. Put your law expertise and problem-solving skills to good use. There are many opportunities to do pro bono legal

work and all types of community service in our area. Whether it’s abused women and children, people who can’t afford legal services, or asylum seekers, there is work to be done. Let’s strive together to continue building our great community. We’ll all be better for it. These folks can use our expertise and attention: • Abused women and children: vlsoct.org/volunteer/volunteeropportunities/ • Many local folks who cannot afford legal services: probonotexas.org/get-involved/ • Asylum seekers: americangateways.org/getAUSTIN LAWYER AL AL involved/

FREE LEGAL ADVICE CLINIC FOR VETERANS                                   

        

The Caldwell County Veterans Service Office is hosting an in-person legal advice clinic for Active Duty Military Service Members, Veterans, and military family members! Date:

Wednesday, June 29, 2022

Where:

Caldwell County Justice Center, 1703 S Colorado St, Lockhart, TX 78644

Time:

1:30 p.m. – 4:00 p.m.

Walk-ins are welcome or you may pre-register online! Please see below for pre-registration details.

        

  REGISTRATION INFORMATION  

To register for the Free Legal Advice Clinic, you will need complete an intake form. Paper forms will be provided at sign-in on the date of the clinic or you can conveniently preregister online today! Please use this link to pre-register: https://memcentral.wufoo.com/forms/intake-form-veteran-legal-assistance-program/ For another convenient registration option, use your smartphone or tablet to scan this code to open and complete the intake form:

Program support provided by the Texas Access to Justice Foundation and the Austin Bar Association provide support to this program. For any questions about the Legal Advice Clinic or Legal Assistance Program please contact the Austin Bar Association at 512-472-0279 x110.

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Austin Lawyer, June 2022

Articles inside

Return to the Age of Reason? Welcome to “TRUEgle Translate”

Practicing Humanity at Work and in the Community

A CHEER for Homecoming

2022 Austin Bar Association Commencement

What’s in a Name? That Which We Call Weed

Some of What I Have Learned

Job Well Done!

Drag & Justice Supports Scholarships

Fifteenth Annual Color of Justice Program Inspires Students

Congratulations. You Are in Charge. Now What?