Austin Lawyer, May 2017 by Austin Bar Association

austinbar.org MAY 2017 | VOLUME 26, NUMBER 4

Honoring Former Texas Supreme Court Chief Justice, Jack Pope BY OSLER MCCARTHY, STAFF ATTORNEY FOR PUBLIC INFORMATION, SUPREME COURT OF TEXAS

ears before he died on February 25, 2017, Jack Pope pulled a book from a section at his home library in Austin, a copy of “Minimum Standards of Judicial Administration.” “This is my Bible,” said the former Texas Supreme Court chief justice, whose tenure as a judge was longer than any Texas Supreme Court justice in history. But the book Jack Pope called his Bible might have been instead one of four volumes of “Jurisprudence” by the great legal scholar Roscoe Pound. Or any of the other hundreds of books he pointed to on shelves packed floor to ceiling with biographies and treatises in a library larger than most suburban garages. “These,” he said of the books lining his walls, “are my friends.” With his chiseled features and shock of white hair, Hollywood could not have cast a better judge. Andrew Jackson Pope Jr., who helped establish formal judicial education for Texas judges, fought for a voluntary judicial-ethics

code when judges had none and fought again to make that code mandatory and enforceable, died Feb. 25 in his Austin home at the age of 103. He served Texas for 39 years on the district court, the court of appeals, and the state’s highest civil court. He is buried in the Texas State Cemetery next to his wife of 66 years, Allene. As a court of appeals justice, Pope’s reassessment of water rights conveyed by Spanish and Mexican land grants changed Texas water law forever. As chief justice, he forged a way to guarantee income to finance legal assistance for the poor. Concerned with double litigation in the same case, he won legislative support for statutory changes to thwart “forum shopping.” “I’m a common-law lawyer,” he proudly would proclaim. “And I was a common-law judge.” “Chief Justice Pope was an icon for the Texas judiciary: a judge of enormous character and uncompromising integrity,” Chief Justice Nathan L. Hecht told an audience

“I’m a common-law lawyer. And I was a common-law judge.” – the late former Texas Supreme Court Chief Justice Jack Pope

Former Texas Supreme Court Chief Justice Jack Pope spending time with his “friends” before his death.

gathered for Pope’s funeral—“judicial ethics incarnate; a fascinating story-teller with a distinct voice, sparkling eyes and a wry sense of humor; a strong and humble leader; a wise and patient mentor; and a good and dear friend.” The sweep of his reforms and his opinions changed Texas law forever, said Austin attorney Steve McConnico, a former law clerk who delivered Pope’s eulogy. “What he did for trial practitioners, there’s no way to measure it,” McConnico said. Pope earned his law degree from the University of Texas in 1937 and began his practice in Corpus Christi under an uncle’s tutelage. Following a stint in the U.S. Navy in World War II, Pope was

appointed to his first bench in Corpus Christi in 1946 and served for four years. In 1951 he left for San Antonio’s Fourth Court of Appeals, having beaten three contenders without a runoff in the all-important Democratic primary, becoming the first justice on the court from south of San Antonio. He served on that court for 14 years until his election to the Supreme Court of Texas in 1964. Gov. Bill Clements appointed him chief justice in 1982 to succeed Joe Greenhill. Greenhill, who retired, urged Clements, a lame duck Republican governor, to appoint Pope. Fourteen Democratic senators pledged to continued on page 5

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CONTENTS

AUSTINLAWYER MAY 2017 | VOLUME 26, NUMBER 4 AL A L INSIDE FEATURED ARTICLES 1

Honoring Former Texas Supreme Court Chief Justice, Jack Pope

DEPARTMENTS 6 President’s Column

JUSTICE FOR ALL: Putting Words Into Action

Opening Statement

Austin Bar Board Unanimous in Support of Legal Services Corporation

Briefs

Two Austin Inns of Court Receive Recognition

Third Court of Appeals Civil Update

Local Inns of Court Accepting Applications

Third Court of Appeals Criminal Update

Federal Civil Court Update

AYLA

Ad Index

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Honoring Former Texas Supreme Court Chief Justice, Jack Pope continued from cover

block any appointment Clements made, essentially dooming it in the Senate. They argued that such an important appointment should be saved for incoming Gov. Mark White, the Democrat who beat Clements. So Clements picked Pope, who had voted for White. White gave unqualified support to Pope. In his State of the Judiciary speech just after his confirmation, Pope argued for reforms he had championed for years. He urged nonpartisan election of judges and equal access to justice for the poor, and approval of the so-called IOLTA program to pay for it with interest on lawyers’ common client-trust accounts. He argued for overhaul of what he considered Texas’ wasteful venue statutes. Perhaps his greatest contribution to Texas jurisprudence was State v. Valmont Plantations, decided in 1961 while he was on the San Antonio Court of Appeals.

Maitreya Tomlinson

In Valmont, Pope reevaluated a landmark water-rights case from three and a half decades before, found it laden with dicta and without analysis of Mexican and Spanish land grants even though those land grants should have been critical to the decision. So Pope cast aside the notion he was abandoning settled law, methodically demonstrating its fallacies. His Valmont decision was a proud legacy because the Texas Supreme Court adopted his opinion as its own, a rare occurrence. When historical novelist James Michener researched water and its bearing on Texas history for his novel “Texas,” recalled Dan Branch, a former law clerk to Pope, Michener called on Pope to explain it. “His researchers had figured out that he was water law,” Branch said. In 2009 the Texas Center for Ethics and Professionalism presented its first Jack Pope

D. Todd Smith

ABOVE: Former Texas Supreme Court Chief Justice Wallace B. Jefferson congratulates Justice Pope on his 100th birthday. RIGHT: The late Justice Jack Pope.

Professionalism Award to Pope. In 2010 the State Bar’s Judicial Section honored him with a lifetime achievement award. In a quarter century of retirement, he kept active, studying and writing about the law and his

family history, preparing books and papers for donation. And walking through his West Austin neighborhood. “Just about the time I was getting the hang of being a LAWYER judge,” he AUSTIN said once, “I had to retire.” AL AL

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PRESIDENT’S COLUMN LESLIE DIPPEL, ASSISTANT TRAVIS COUNTY ATTORNEY

Living the Lawyer’s Creed Pass it On

“

am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.” I have read the Lawyer’s Creed many, many times. It was only after writing this series of columns for Austin Lawyer that it struck me how many of its tenets are characterized as an “obligation.” As someone who enjoys studying and learning principles of leadership, I appreciate the imperative it sets. The legal profession is a difficult one. We handle large responsibilities and carry great risks. Above the resolve we all feel to practice law successfully and effectively, the Creed also clearly challenges us to be leaders. Much is written about the differences in management and leadership. The late management guru Peter Drucker was one of the first to recognize

AUSTINLAWYER | MAY 2017

that people look to their managers, not just to assign them a task, but to define for them a purpose in their work. Leaders organize workers, not just to maximize efficiency, but to nurture skills, develop talent and inspire results. Drucker wrote, “The task is to lead people. And the goal is to make productive the specific strengths and knowledge of every individual.” We each do this instinctively every day. This portion of the Lawyer’s Creed urges us to “pass it on.” One of the many opportunities the Austin Bar Association and Austin Young Lawyer’s Association provide in this regard is the Leadership Academy. This innovative program was developed by David Courreges and Judge Karin Crump in 2012. Led this year by Chari Kelly and Travis Plummer, the Leadership Academy assists Austin-area lawyers in making a difference in the community and service to the Bar. Once selected, the participants in the Leadership Academy have regular meetings where they interact with local leaders and elected officials who pass along their experience and wisdom. Specifically focused on the unique role a lawyer plays

Above the resolve we all feel to practice law successfully and effectively, the Creed also clearly challenges us to be leaders.

Academy are building a foundain our community, experienced tion upon which they will build leaders share their stories in their careers. More importantly, hopes of inspiring the particithey are building the foundation pants to recognize their unique upon which they will build their responsibilities as lawyers to the reputations as lawyers. Thank community. Probably without you, Chari and Travis, for truly even recognizing they are doing living the Lawyer’s Creed and it, Chari and Travis and the modeling for young lawyers leaders who volunteer to speak at that the Creed is something we their events, are passing on the believe in and practice on a daily spirit and letter of the Creed. The AUSTIN LAWYER basis. participants in the Leadership AL AL

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JUSTICE FOR ALL: Putting Words Into Action

illions of Texans cannot afford legal representation. Their circumstances are desperate, their needs are dire, and their only lifeline is legal aid. The Justice for All Campaign was created by the Texas Access to Justice Commission to support local legal aid organizations and to give these vulnerable Texans a measure of relief. As a lawyer and member of the Austin Bar Association, your commitment to justice is as inspirational as it is vital. That’s why we urge you to contribute to this statewide campaign; funds raised support organizations in our community and around the state. The success stories are a continual reminder of the needs— and especially of the needs met—of our fellow Texans, like Beth. Beth was the victim of her husband’s abuse, which often took place in front of their three children. Beth left when her husband grabbed a gun and threatened to kill both of them. Even after they separated, the abuse and harassment continued. When Beth learned that her husband had also been sexually molesting their daughter, she sought help from legal aid to get a divorce and a protective order. Soon after the divorce was filed, her husband’s family began to threaten Beth and her children until she felt she had

no choice but to move from her own home. Her legal aid attorney was able to get orders in place to stop the abuse and harassment. Beth was awarded sole custody of the children and the home she previously owned jointly with her husband. Her husband was eventually sent to prison and is no longer allowed near her children. By the end of the process, Beth had started a new job and her children were thriving. Peace of mind settled upon Beth and her children in a way they had never known—thanks to legal aid. Make an Access To Justice contribution on your State Bar dues statement through your MyBarPage, the Commission’s Donation page, in person, or by mail. Your contribution can mean

Your commitment to justice is as inspirational as it is vital. security for survivors of domestic violence, protection from exploitation for the elderly, medical benefits for children with special needs, and so much more. Last year, the Justice for All Campaign raised more than $1.3 million to help low-income Texans with their basic civil legal needs. Contributions are distributed to civil legal serviceAUSTIN providersLAWYER across the state that help low-income Texans. AL AL

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Austin Bar Board Unanimous in Support of Legal Services Corporation

n a unanimous vote on March 29, 2017, the Austin Bar Board of Directors approved this statement regarding the proposed elimination of funding for the Legal Services Corporation: On March 6, 2017, the Trump Administration revealed a federal budget proposal that would eliminate funding for the Legal Services Corporation. The Austin Bar Association joins the American Bar Association and countless local and state bars from across the country in renouncing this proposed action. The LSC ensures equal justice under the law by enabling access to the justice system for vulnerable citizens and provides the backbone for America’s civil legal-aid and pro bono system. According to the American Bar Association, the number of people qualifying for legal assistance has increased about 25 percent during the past decade, but funding is down 17.7 percent since 2010. Legal aid assists nearly 1.9 million Americans annually, including military and veterans, senior citizens, rural residents, women (nearly 70 percent

of clients), and natural-disaster victims. Sadly, 50-80 percent of clients are turned away due to a lack of resources. Texas has three LSC grantees: Texas RioGrande Legal Aid, Legal Aid of Northwest Texas, and Lone Star Legal Aid. Texas LSC grantees assisted more than 131,000 Texans in 2017, including more than 58,500 children. Approximately 6 million Texans, more than 20 percent of the state’s population, are eligible for legal aid. The poverty population has increased by nearly 1.3 million since 2000. The state currently receives $31,196,205 in federal funding from the LSC. This funding accounts for 54 percent of Texas’s total legal-aid dollars. Any reduction at the federal level will impact Texas more acutely than many other states. Texas Supreme Court Chief Justice Nathan Hecht, in his address to the 85th Texas Legislature on February 1, 2017 said, “The justice system must be accessible to all. Justice only for those who can afford it is neither justice for all nor justice at all. The rule of law, so revered in this country, has no integrity if its promises

The proposed elimination of all funding for the LSC is an affront to our democracy and to the legal system upon which it is based. and protections extend only to the well-to-do.” Austin attorneys, along with attorneys from across Texas and the U.S., generously donate countless hours of time and services to pro bono clients, but pro bono work alone is a poor substitute for federal legal-aid funding. Access to the judicial system, the third branch of government and the bedrock of a free democracy, remains for all Americans—not just those who can afford to pay for an attorney—a fundamental right of American democracy. The proposed elimination of all funding for the LSC is an affront to our democracy and to the legal system upon which it is based. The Austin Bar Association is proud to support the LSC and is deeply committed to serving the citizens of Austin and Central Texas to ensure equal AUSTIN LAWYER access of justice for ALall. AL

HOW CAN YOU HELP? 1. The American Bar Association has established a website, DefendLegalAid.org, to bring people together to support LSC. We encourage all supporters of access to justice efforts to visit this website and register as a Legal Aid Defender. Doing so will allow the ABA to hand deliver your information to your members of Congress and show the tremendous support for LSC that exists nationwide. 2. Join us in becoming a Defender of Legal Aid and telling our elected officials that the justice system only works when it works for everybody. Contact your members of Congress and let them know you support continued funding for LSC.

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Two Austin Inns of Court Receive Recognition Both Awarded the Achieving Excellence Platinum Designation

or the fourth consecutive year, two Austin Inns of Court, The Robert W. Calvert American Inn and The Honorable Lee Yeakel Intellectual Property American Inn, received the Achieving Excellence Platinum designation. In addition, Austin is home of two members of the national Board of Trustees, Dirk Jordan and Judge Lee Yeakel. Recently, Judge Andy Hathcock, 2015-2016 president of the Robert W. Calvert Inn of Court, and Judge Lee Yeakel, 20152016 president of the Honorable Lee Yeakel Intellectual Property American Inn, attended the Evening of Excellence dinner at the Supreme Court of the United States in Washington, D.C., where they were presented with the awards. Many dignitaries were also in attendance, including Supreme Court Justice Sonia Sotomayor.

AUSTINLAWYER | MAY 2017

Judge Hathcock said, “Our members worked very hard to maintain our platinum status for the fourth year in a row. I am proud to be part of the American Inns of Court and its purpose in promoting professionalism and civility in the practice of law and the administration of justice.” “The consistency with which the Inn achieves this status is a reflection of the hard work of the Inn’s members,” said Judge Yeakel. “They are all great lawyers who have espoused the mission of civility and professionalism established by the American Inns of Court.” Both men expressed gratitude to the Inn’s Executive Director, Darla Thomas, for making sure the Inns run smoothly and for keeping them focused on attaining their goals. The American Inns of Court is an association of lawyers, judges, and other legal professionals who

Judge Andy Hathcock and wife Valinda Bolton with US Supreme Court Justice Sonia Sotomayer and other guests.

share a passion for professional excellence. Through regular meetings, members are able to build and strengthen professional relationships, discuss fundamental concerns about professionalism and pressing legal issues of the day, share experiences and advice, exhort the utmost passion and dedication for the law, provide mentoring opportunities,

and advance the highest levels of integrity, ethics, and civility. This uniquely nonpartisan association encourages meaningful mentoring relationships. They are one of the very few legal organizations that involve the whole spectrum of the profession. From law students to supreme court continued on page 11

Local Inns of Court Accepting Applications Apply Now for Membership

he American Inns of Court inspire the legal community to advance the rule of law by achieving the highest level of professionalism through example, education, and mentoring. Each Inn is designed to improve the skills, professionalism, and ethics of the bench and bar. Four American Inns of Court in Austin are currently accepting applications for admission. All

interested individuals should submit a letter stating their interest in joining, a résumé, and two letters of recommendation—preferably from members of the legal community. The Barbara Jordan American Inn of Court encourages applications from all licensed Texas attorneys with a focus on diversity and those who have not had Inn experience. Send application to barbarajordaninnofcourt@gmail. com by May 31.

Applications for Honorable Lee Yeakel Intellectual Property American Inn of Court should be sent to Lou Pirkey at lpirkey@ pirkeybarber.com, Brian Nash at brian.nash@pillsburylaw.com, or Darla Thomas at dkthomas@wsgr. com by May 31. Karen Burgess is accepting nominations for the Lloyd C. Lochridge Inn of Court at kburgess@richardsonburgess.com by May 26. The Lloyd Lochridge

Inn is open to all attorneys and judges involved in litigation. The Robert W. Calvert Inn of Court welcomes applications from any practicing attorney or judge in Travis County and the contiguous counties. Membership is open to all licensed Texas attorneys, without regard to area of practice or trial experience. Send application materials to Sherine Thomas at Sherine.Thomas@ AUSTINLAWYER traviscountytx.gov by May AL31. AL

continued from page 10

justices, every level of federal and state judges, small firms to large firms, and legal educators to law students. All have the opportunity to learn and grow without limit. Each year, Inns are rated through an “Achieving Excellence” program. This is a tiered, achievement-based program that recognizes activities in which Inns are already involved and builds on the Inn’s successes. Each level recognizes the Inn’s progress toward mastering effective practices in each of the five core competencies of inn management: administration, communications, programs, mentoring, and outreach. Inns are recognized in the following award levels: bronze, silver, gold, and platinum. The American Inns of Court movement has grown faster than any other organization of legal professionals. Within the last seven years, five new Inns of Court have been formed in Austin, joining The Robert W. Calvert Inn, which was established in 1990. In 2009, the Austin Intellectual Property Inn (renamed The Honorable Lee Yeakel Intellectual Property Inn) and The Lloyd Lochridge Inn were established. In 2014, The Honorable Larry E. Kelly Inn was formed and The Barbara Jordan Inn was chartered in 2015. A Williamson County Inn is now in development. ForAUSTIN more informaLAWYER tion, visit www.innsofcourt.org. AL AL

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AUSTINLAWYER | MAY 2017

OPENING STATEMENT

Hyphenating Pre-fixes Preparing Pre-fixes for the Legal Crowd BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

hould we write pre-trial or pretrial? Non-statutory or nonstatutory? Co-sponsor or cosponsor? As legal writers, we often have to decide whether to use a hyphen for a prefix. By the way, there is no hyphen in prefix, despite the hyphen in the title; I was just being clever. In this column I’ll discuss the default rule for hyphenating prefixes as well as the exceptions. I won’t discuss hyphens for compound modifiers (also called phrasal adjectives). For that subject, see The Compound-Modifier Hyphen Connects & Clarifies, Austin Lawyer 7 (Feb. 2014). The default rule is to omit most hyphens: pretrial, nonstatutory, cosponsor. According to Joan Magat in “The Lawyer’s Editing Manual,” the same rule applies to multiracial, nongovernmental, semiliterate, and underutilize.1 Even when the result is a doubled letter, omitting the hyphen is generally correct, according to Bryan Garner’s “Redbook.2” So interrelate, misspell, overrate, posttrial, preempt, and reelect. Omitting the hyphen can produce words your spell-checker doesn’t recognize, but “they are nonetheless correct,” according to June Casagrande in “The Best Punctuation Book, Period.3” Now the exceptions. Certain prefixes always take a hyphen, and Magat and Garner agree on four that require a hyphen in legal writing: all-, ex-, quasi-, and self-. So all-encompassing, all-knowing, ex-convict, ex-president, quasi-contract, quasi-public, self-assessment and self-serving. When the prefix precedes a capital letter or a numeral, use a hyphen. Casagrande, Garner, and Magat agree on this: non-American, anti-Semitic, post-1986, and pre-9/11. Bring in a hyphen when omit-

ting it could create a miscue, an ambiguity, or confusion—because the unhyphenated word looks like another word: • Judge Kean spent most of her pre-judicial career at Lowery & Townes. • Forbes rejected the Petitioner’s request to re-sign the contract. • The incident resulted from an unexpected re-formation of river ice. • Andrick’s video was meant to re-create the events at issue. The experts also recommend a hyphen when omitting it could create an awkward or hard-to-pronounce compound. Here you must exercise editorial judgment; as you’ll see, the experts’ examples aren’t always consistent with other guidance. Here are the examples the experts say should be hyphenated: • Casagrande: anti-inclusive, intra-arterial, ultra-apathetic • Garner: anti-intellectual, post-sentencing, pro-abstinence • Magat: co-opt, co-worker, non-odious Thus, we’ve arrived at our guidelines for hyphenating prefixes. A no-hyphen approach is preferred, with three exceptions: 1. With all-, ex-, quasi-, and self; 2. Before numerals and capital letters; and 3. To avoid awkwardness—exercising your best editorial judgment. After all, as Garner acknowledges, “Reasonable people will differ on such a question.”4 For detailed guidance, see “The Chicago Manual of Style” § 7.79, which is followed in § 7.85 by a 9-page table table with rules for hyphenating specific prefixes and words.5 Magat’s book, “The Lawyer’s Editing Manual,” also contains a list of prefixes that are generally unhyphenated, with exceptions.6

The default rule is to omit most hyphens: pretrial, nonstatutory, cosponsor. One other note: prefixes and compound modifiers aside, a hyphen can also show up in a compound word—a combination of two words that functions as a single unit. It’s common for these compounds to progress from two words (an open compound) to a hyphenated word (a hyphenated compound) and then to a single word (a closed compound), like these: • on line, on-line, online • leg room, leg-room, legroom • birth rate, birth-rate, birthrate

Footnotes: 1. Joan Ames Magat, “The Lawyer’s Editing Manual” 102 (2008). 2. Bryan A. Garner, “The Redbook: A Manual on Legal Style” § 1.64 (3d ed. 2013). 3. June Casagrande, “The Best Punctuation Book, Period,” 111 (2014). 4. Bryan A. Garner, “Garner’s Dictionary of Legal Usage” 733 (3d ed. 2011). 5. “Chicago Manual of Style” § 7.79 (16th ed. 2010). 6. “Magat, The Lawyer’s Editing Manual” at 102.

These transitions only slowly make their way into print dictionaries, so look online, but again, LAWYER exercise your editorial AUSTIN AL AL judgment.

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MAY 2017 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Brittany Greger Kristine Gregg

Ahlrich, Henderson, Matula, Metayer, Newby, Sanchez, and Simmons

Christopher Henderson William Miller Cheryn Netz Jameson Sauseda Chris Schlag Matthew Weiner Kristina Williams Leah Yousefi

AWARDS

NEW TO THE OFFICE

MOVING ON UP

Danielle Ahlrich of Martens, Todd, Leonard & Ahlrich was selected as a 2017 Texas Rising Star in business tax. Ahlrich focuses on state tax litigation, primarily representing businesses in sales tax and franchise tax disputes against the Texas Comptroller.

Christopher G. Henderson was hired as a Senior Associate Attorney at Bertolino LLP. Henderson focuses on medical/ dental malpractice, professional licensure issues, personal injury litigation, and more.

Jessica Barta was reappointed to the Injured Employee Public Counsel for a term to expire February 2019 by Governor Greg Abbott. Barta has served as the Injured Employee Public Counsel since October 2014.

Paul Matula, Sara Schaefer, Christopher Weema, and Veronica Ocañas were hired at the City of Austin Law Department. Matula focuses on commercial and employment matters. Schaefer is a recent graduate of UT Law. Ocañas focuses on construction law matters and contract disputes.

Sandra D. Gonzalez was elevated to shareholder and Janis E. Clements was elevated to counsel at the Austin office of Greenberg Traurig. Gonzalez focuses on international compliance matters including the Foreign Corrupt Practices Act and the UK Bribery Act, among others. Clements focuses on commercial litigation, antitrust, complex business litigation, patent litigation, licensing, and energy and natural resources law.

Rudolph K. Metayer of Chamberlain McHaney won the award for Austin Under 40 in the Government and Public Affairs category. Milam Newby won the award for Austin Under 40 in the Legal category. Newby is managing partner at Austin, Vinson & Elkins. Hazel Sanchez of Brink Bennett Flaherty is now Board Certified in Estate Planning & Probate Law. Sanchez focuses on all aspects of estate planning, including wills, trusts, complex wealth disposition strategies, marital property planning, and more.

Lee Simmons joined the City of Austin Law Department as a member of the Land Use and Real Estate Division. Simmons will focus on zoning and land development issues.

Richard E. Gray, IV was named partner of Gray & Becker. He focuses on civil and family law litigation.

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AUSTINLAWYER | MAY 2017

Austin Bar Partners with Local Attorneys to Create CANLAW —a Cancer Legal Clinic BY CAITLIN HANEY JOHNSTON

n my 28th birthday, while recovering from surgery for a different health issue, I heard the words, “We found cancer.” Those three words completely altered the direction of my life. Over the course of several months, after numerous doctor visits and extensive testing, my oncology team was comfortable saying they had removed the cancer, quite on accident, before it had a chance to spread. My diagnosis was stage II goblet cell carcinoid, a very rare type of appendix cancer. My prognosis is a 20 percent chance of reoccurrence in the next five years. Given my good fortune in finding the cancer early while so many others did not, I had a deep desire to give back to the cancer community. I had estate planning experience, so I decided the best way to help was to share my legal knowledge with others. I spoke at CancerCon, the largest gathering of young adult cancer survivors in the country, in Denver, on the topic of legal healthcare documents and estate planning. Prior to, and following, my talk in Denver, I spoke at various cancer survivor support-groups around Austin. In giving these talks, the question that came up again and

again was, “Can I prepare these documents online?” In my short four years of practicing law, I have seen dozens of “online wills” that either stop short of accomplishing what they intend to do, or are incorrectly executed. But the question is easy to understand. For people who are already strained for time and monetary resources, the idea of spending hours in an attorney’s office, and hundreds or thousands of dollars for legal services, is overwhelming. Further, no one likes to plan for incapacitation or death because everyone is trying to “stay positive” after a cancer diagnosis. These experiences inspired me and Randy Cubriel, a fellow attorney and young adult cancer survivor, to create the Cancer Legal Clinic, also known as CANLAW. CANLAW’s mission is to take away all the excuses for avoiding estate planning. We take away the excuse of “I don’t have time” by offering the clinic in a four-hour format. Prior to the clinic, clients fill out a short qualifying questionnaire. On the day of the clinic, clients meet with an attorney volunteer and leave with a properly drafted and executed Medical Power of Attorney, Statutory Durable Power of Attorney, HIPPA Release, Healthcare Directive, and Last Will and Testament. We take away

CANLAW’s mission is to take away all the excuses for avoiding estate planning by offering this service free of charge to members of the cancer community. the excuse of “I don’t have the money” by offering this service free of charge to members of the cancer community. We take away the fear of talking about estate planning by offering it as a service provided to all cancer survivors, so that friends can deal with these issues together. The first clinic was held on April 22, 2017 at the Southeast Health and Wellness Center on Montopolis Drive. A second clinic is planned for September in North Austin. All of this has been made possible by the generous support of the Austin Bar Foundation and the Austin Bar Association. For more information about the clinic, including information about volunteering or becoming

a client, please visit the website at cancerlawclinic.org, or email AUSTINLAWYER info@cancerlawclinic.org. AL AL

Caitlin Haney Johnston is an associate attorney at The Haney Law Firm. She is a cancer survivor.

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THIRD COURT OF APPEALS CIVIL UPDATE ingly, the court vacated the Board’s order and trial’s court’s judgment and dismissed the case.

Laurie Ratliff is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization and is a shareholder with Ikard Golden Jones. From 1998 through 2001, she was a staff attorney with the Third Court of Appeals.

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

ADMINISTRATIVE LAW: Agency loses jurisdiction while challenged order is on appeal. Dass v. Texas Bd. of Prof’l Eng’rs, No. 03-140—552-CV (Tex. App.—Austin March 15, 2017, no pet. h.). Dass filed a suit for judicial review of Board’s order suspending his license. The district court struck some of the Board’s findings and remanded to the Board. Dass appealed. While Dass’s appeal was pending, Board revised its original order and issued an amended order. Dass sought to dismiss his appeal based on the amended order. The court of appeals dismissed the appeal. Dass then filed a new suit for judicial review, challenging the amended order and ultimately appealed. The court of appeals noted that once judicial-review proceedings are initiated, an agency loses jurisdiction. Thus, Board lacked jurisdiction to amend the order while the case was pending on appeal. Accord16

AUSTINLAWYER | MAY 2017

GOVERNMENTAL IMMUNITY: Party cannot rely on another party to create standing. City of Austin v. Utility Assocs., Inc., No. 03-16-00565-CV (Tex. App.—Austin March 24, 2017, no pet. h.). Utility, a competing bidder, challenged City’s contract procurement to provide cameras for APD. The trial court granted a plea to the jurisdiction on immunity for all of Utility’s claims, except those under Loc. Gov. Code §252.061. Both parties appealed. Section 252.061 provides that contracts made in violation of chapter 252 are void and may be enjoined by a property-tax-paying resident or a competitive bidder if the contract is for public works. The contract here was not for public works. The court concluded that Utility lacked standing to pursue City and could not rely on another plaintiff’s standing to overcome Utility’s jurisdictional defect. The court affirmed in part and reversed and dismissed in part. PERMISSIVE APPEAL: Pending class certification proceeding tolls limitations. Asplundh Tree Expert Co., v. Abshire, et al., No. 03-16-00760CV (Tex. App.—Austin March 24, 2017, no pet. h.). After the trial court denied class certification, three lawsuits were filed against Asplundh based on the 2011 Bastrop fires. Asplundh argued the claims were barred by the two-year statute of limitations. The trial court denied Asplundh’s motion for summary judgment. In this permissive appeal, the court of appeals noted that the Supreme Court in American Pipe held that the commencement of an original class action suit tolled limitations for all purported class members’ claims. The court concluded that the doctrine applies under Texas law and held that limitations were tolled pending a ruling on class certification. The court further concluded that tolling included all

claims that are substantially similar to the class claims. Accordingly, limitations were tolled on plaintiffs’ trespass and nuisance claims. The court affirmed and remanded. SANCTIONS: Court reverses denial-of-jury-trial-on-damages sanction. England v. Kolbe, No. 03-1500409-CV (Tex. App.—Austin March 30, 2017, no pet. h.) (mem. op.). England made numerous misrepresentations in discovery regarding money she had taken while managing her mother’s affairs. The trial court imposed monetary sanctions and attorney’s fees against England. Additional discovery revealed that England had removed, but not disclosed, almost $700,000 from her mother’s accounts. The trial court struck England’s pleadings, awarded plaintiff attorney’s fees, entered a default judgment on liability, and denied

England’s demand for a jury trial on damages. The court of appeals affirmed the sanctions, except the denial of a jury trial on damages. According to the court, nothing in the record demonstrated that the denial of a jury trial was related to England’s offensive conduct, that it would remedy her discovery abuse, or that it served any legitimate purpose of discovery sanctions. The court affirmed in part and reversed and AUSTIN LAWYER remanded inApart. L AL

Patrick

Keel Former District Judge

patrickkeel.com (512) 293-0300

Mediator Arbitrator

THIRD COURT OF APPEALS CRIMINAL UPDATE

The cases summarized are from November 2016 and subsequent histories are current as of March 31, 2017.

LAW OF PARTIES: Evidence was sufficient to support appellant’s conviction as party to offense of possession of a controlled substance, methamphetamine, with intent to deliver. Knight v. State, No. 03-16-00093CR (Tex. App.—Austin Nov. 16, 2016, no pet.) (mem. op., not designated for publication). Police officers arranged a drug buy with the assistance of a “cooperating individual.” The drug buy was scheduled to occur in a parking lot. According to the evidence presented, a truck arrived at the parking lot, an individual entered the truck, presumably to purchase drugs, and several minutes passed. Officers then approached the vehicle and arrested those inside the vehicle. Methamphetamine was found in a container located in the driver’s seat, and a glass pipe was found in the center console. Knight was seated in the front passenger seat, “wearing gloves with hard composite knuckles on both hands and metal knuckles underneath the glove of his right hand.” Knight also had more than $1,300 in cash inside his pocket. Knight was later charged with and convicted of possession of a controlled substance with intent to deliver. On appeal, Knight asserted that the evidence was insufficient

to prove that he was criminally responsible for the actions of the person who had been driving the vehicle. The appellate court disagreed. The court explained that “[t]o be deemed criminally responsible as a party, there must be evidence of ‘an understanding and common design to commit the offense.’” Moreover, the court added, “[i]ntent to assist or promote may be inferred from the acts, words, and conduct of the defendant and from the circumstances in which the offense occurred.” Here, the circumstances of the offense included the large amount of money that Knight had on his person—organized in “drug folds” for separate methamphetamine transactions—and the fact that he wore gloves with metal knuckles. According to the testimony of one of the officers, drug dealers “use enforcers and use muscle or security to extort [more] money out of the buyer.” Additionally, according to the officer, a person selling methamphetamine valued at more than $1,000 would “need security to make sure that nobody would try to steal from them.” In the officer’s opinion, Knight was acting as an “enforcer” for the drug dealer. The court concluded that, viewed in the light most favorable to the verdict, this and other evidence supported a finding that Knight had “committed acts encouraging and aiding the illegal transaction” by providing “security” for the dealer. Accordingly, the court affirmed Knight’s conviction.

SEARCH AND SEIZURE: Trial court did not abuse its discretion by denying motion to suppress drug evidence found inside appellant’s apartment. Nanny v. State, No. 03-16-00196CR (Tex. App.—Austin Nov. 30, 2016, no pet.) (mem. op., not designated for publication). Nanny, a registered sex offender, lived in an apartment building. Officers would routinely visit Nanny’s residence to verify his location. On one such visit, an officer observed that there were lights on in the building and the garage doors to the building were open. The officer entered the building, knocked on the door to Nanny’s apartment inside the building, and then entered the apartment after Nanny had opened the door. Once inside, the officer observed drug paraphernalia on a kitchen countertop and, in plain view on appellant’s bed, a “[p]lastic bag containing a white crystal substance and a grinder which had [a] green leafy substance residue inside of it.” Nanny was subsequently arrested for possession of methamphetamine. Prior to trial, Nanny filed a motion to suppress the evidence found inside his apartment, which the district court denied. One of the issues on appeal was whether the contraband had been observed in plain view. Although two of the defense witnesses testified that someone standing in the doorway of the apartment could not see items that were on the kitchen counter, the

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.

officer testified that he could see the counter from the doorway, and the appellate court concluded that the district court would not have abused its discretion in crediting the officer’s testimony. The appellate court also observed that, even if the officer could not see the evidence in plain view, the officer had testified that Nanny had provided permission for the officer to enter the apartment “by nodding his head and by opening the door and letting [the officer] inside.” Thus, the record supported an implied finding by the district court that Nanny had consented to the officer’s entry. For these and other reasons, the appellate court affirmedLAWYER the denial of the motion AUSTIN to suppress. AL AL

Edward C. Fowler, CFA, ASA, MAFF (512) 476-8866 edward@financial-valuations.com www.financial-valuations.com

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FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued by the U.S. District Court for the Western District of Texas during March 2017. These summaries are intended as an overview only, and counsel are cautioned to review the complete opinions.

LEGAL ETHICS: Attorney-client privilege does not apply automatically just because information arises from attorney-client relationship or simply by virtue of an attorney being involved. City of Hearne, Texas v. Johnson, No. 6:2016-cv-00284 (W.D. Tex. [Waco] Mar. 21, 2017). In case alleging misappropriation of city funds, city attorney filed motion for protective order on grounds that information sought by interrogatories was privileged. Requesting party filed motion to compel. Court found documents and communications were not automatically protected just because an attorney was involved

or because the information arose from an attorney-client relationship, and privilege did not extend to non-legal services. Protection under attorney-client privilege covers only communications made in confidence for express purpose of obtaining legal advice. Privilege is intended for communications from client to attorney; it only applies to communications from attorney to client to the extent such communications reveal substance of prior protected communications from client to attorney. Communication of information obtained from third parties is not protected. When attorney is a party, attorney’s memory of events giving rise to lawsuit are not protected by work-product doctrine; work-product protection only applies to knowledge obtained exclusively through representation. Party asserting privilege has burden to provide specific facts supporting assertion; court cannot speculate about hypothetical scenarios. Court held city attorney failed to meet the

MEDIATION & ADR SERVICES

MARK L. HAWKINS MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS

burden, except as to contents of communications between lawyers representing city attorney and third parties about subject matter of litigation, which were protected by work-product doctrine. Motion for protective order granted as to such information only; motion to compel granted as to all other requests. CONSTITUTIONAL LAW: In employment context, due process requires robust post-termination administrative procedures. Brown v. Nero et al., No. 1:2015cv-00965 (W.D. Tex. [Austin] Mar. 31, 2017). Plaintiff alleged wrongful termination from Georgetown Police Department, claiming violation of procedural and substantive due process rights. Because plaintiff’s termination was non-disciplinary, plaintiff was not allowed post-termination administrative hearing or right to appeal. On plaintiff’s motion for summary judgment, Court found genuine issues of material fact regarding violations of procedural due process before termination and of substantive due process. However, Court granted summary judgment for plaintiff as to post-termination procedural due process viola-

Rachael K. Jones is an attorney at The Carlson Law Firm and a member of the AYLA Board of Directors.

tions, reasoning that the minimal requirements for pre-termination due process anticipate and require robust post-termination process. Court noted that, although availability of judicial review may sometimes be sufficient to satisfy constitutional due process requirements, employment context specifically requires availability of post-termination administrative procedures. Motion for summary judgment in part and AUSTINgranted LAWYER denied inApart. L AL

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AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN KATIE FILLMORE BUTLER SNOW

AYLA Diversity Career Panel How to Find a Job in Austin

n March 28, 2017, several AYLA members and I participated in a diversity career panel at UT Law. The topic was “How to Find a Job in Austin.” According to the State Bar of Texas, the general population of the Austin/Round Rock metropolitan area grew by 38 percent between 2005 and 2015.1 During the same time, the number of attorneys in the area grew by 36 percent. The good news for legal job seekers is while the population of attorneys is on the rise, it is still growing at a lower rate than the overall population of Austin. However, the Austin/Round Rock metropolitan area has the highest per capita number of attorneys of any metropolitan area in the state, with one attorney for every 170

people. That concentration is even higher in Travis County, with one lawyer for every 115 people. With so many lawyers in Austin and so many law students graduating each year, finding a legal job— especially an entry level position—can be very challenging. AYLA’s law student liaison, Kelvin Han, brought to our attention that many of his classmates at UT Law were interested in staying in Austin after graduation. He suggested AYLA host a career panel on the topic. AYLA member Craig Moore had a similar vision. After several months of planning, and with the help of many, AYLA brought together a panel of young lawyers from diverse backgrounds and practice areas to share their insight on how to land a gig in Austin. The general consensus of the panel was the legal market in Austin is different from other big cities in Texas. Austin is a highly desirable city with a smaller legal market, making it very hard to break into without strong ties. The most prominent recommen-

of fellowship is one of the many dation across the panel was the benefits the Austin Bar and AYLA importance of building a network are designed to provide. We strive of lawyers who can help connect to deliver the same value to our you with opportunities. Panelists newest members, including law also emphasized the importance students. The career panel was of taking advantage of internship a great success, and UT Law opportunities while in school and suggested we host a similar panel building relevant skills. on an annual basis. If you are We invited the law students to interested in participating in a join AYLA, which is a great start future panel or being a mentor to for developing a network in the a law student, please let us know. Austin legal community. AYLA Special thanks to the UT Law offers student membership at a Career Services Office for having discounted rate of $25 per year. us, and to the AYLA members The Austin Bar Association offers who planned and participated in free membership to law students, the panel: Austin Kaplan, Drew and one year of free membership Harris, Craig Moore, Meagan for their first year after graduation. Joey Leak, and Kelvin AYLA and the Austin Bar wouldAUSTINHarding, LAWYER love to have more law students AHan. L AL join. Several events are being planned for the summer months Footnotes: aimed at attracting summer clerks 1 Dep’t of Research & Analysis, and interns. We encourage you to State Bar of Texas, Attorney have your summer law clerks join Population Density By and get involved. Metropolitan Statistical Area (2015-16), available at www. Regardless of the stage of your texasbar.com/AM/Template. career, having a strong network cfm?Section=Demographic_and_ of local attorneys can be invaluEconomic_Trends&Template=/ able to establishing and building CM/ContentDisplay. cfm&ContentID=33670. your legal practice. That type

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AUSTINLAWYER | MAY 2017

AUSTIN YOUNG LAWYERS ASSOCIATION

Lawyers in Fashion AYLA’s Third Runway for Justice Breaks Fundraising Records

he Austin Young Lawyers Association held its largest and most successful Runway for Justice Fashion Show fundraiser on March 23, 2017. More than 150 attorneys and judges attended the fashion-forward event, with attorneys modeling spring fashions from local boutiques. Veteran Runway for Justice show stylist, Brittany Stanford of Fasken Oil, worked hand-in-hand with Olivia Dix at Estilo Boutique and Steven Showalter of Wally’s Menswear selecting looks to showcase casual and day-to-night looks that would “pop” on the runway. Proceeds benefit the AYLA Foundation for projects throughout the year, including the 10th Annual Women’s Resource Fair. Thank you to our event cochairs, Sandy Bayne and Chari Kelly, and our fantastic in-kind sponsors: 800 Congress, Estilo Boutique, Wallys’s Menswear, Z Couture, Ruby & Violet, Ritual Salon, Blast Blow Bar, Tiffany Taylor, AMBERLEAF, Jackie Padilla with Stella & Dot, Embellish Nails and Boutique, Horseshoe Bay Resort, Wanderlust Yoga, Haute House Lash, Alite Laser, Wee Warhols, Love Cycling Studio, Robin Jackson Photography, Kendra Scott, Vintage Villas, The Boston Beer Company, Four, Seasons

Hotel, Tito’s Vodka, Thirtyone, Hey Gorgeous, Topo Chico, 512 Tequila, San Luis Spirits, Caffe Del Fuego, Russell Korman, Raven + Lily, Baron’s Creek Winery, Fixe, Brown Distributing, Alamo Drafthouse, Omni Austin Downtown Hotel, Ziem Photography, & Ross Elite Chauffeur Company. Special thanks to our sponsors: TITLE SPONSOR FirmSpace GLITTERATI SPONSOR Law Office of Sarah N. Jaffery

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CLOCKWISE FROM TOP LEFT: David Courreges; Event co-chairs, Chari Kelly and Sandy Bayne; Travis County District Attorney Margaret Moore; and Franklin Hopkins and Lessie Gilstrap.

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AUSTINLAWYER | MAY 2017

Texas Attorneys Help Death Row Inmate Prevail at U.S. Supreme Court BY CHRIS WEIMER

n March 28, 2017, the United States Supreme Court ruled in favor of Bobby Moore and invalidated the factors Texas used to determine whether Moore was intellectually disabled and thus ineligible for the death sentence. The decision was the culmination of thousands of pro bono hours spent by attorneys around the globe on Mr. Moore’s behalf, including attorneys in

the Texas offices of Norton Rose Fulbright. “Civil litigators spend their days and nights fighting over money,” said firm pro bono chair Adam Schramek. “And while those stakes can be very high, at the end of the day, each side gets to walk away. The stakes when representing a death row inmate are much different.” Moore was convicted of capital murder and sentenced to death at

The decision was the culmination of thousands of pro bono hours spent by attorneys around the globe on Mr. Moore’s behalf, including attorneys in the Texas offices of Norton Rose Fulbright.

the age of 20 for fatally shooting a 72-year-old grocery clerk during a robbery in 1980. He has since been incarcerated on Texas’ death row for more than 35 years. Of those, the last 15 years have been spent in solitary confinement for approximately 23 hours a day. He has twice come within days of execution. “Bobby Moore’s case exemplifies the all-too-real possibility that intellectually disabled prisoners across Texas will be condemned to their death—in violation of the Constitution—simply because they might not have been considered intellectually disabled a quarter-century ago,” said partner Anne Rodgers, one of Mr. Moore’s attorneys at the firm handling his federal habeas case. “The Texas prohibition against consideration of current medical standards has life-anddeath significance in this case.” Moore is but one of several death row cases Norton Rose Fulbright has handled over the years as part of its pro bono program. Other represented death row inmates include Joe Santellan, Louis Castro Perez, Eric Cathey, Virgilio Maldonado, James Roy Knox, and Richard Boyde. The firm became aware of Moore’s case through an assistant general counsel for one of its London-based clients. The counsel’s mother met Moore through LifeLines, a UK organization that supports death row inmates through letter writing. The attorney’s mother had been paired with Moore and remained his pen pal for many years. Before the mother’s unexpected death, the counsel promised to continue corresponding with Moore. “Our attorneys from across the globe have worked on Moore’s representation,” said Schramek, “meaning we saw progress around the clock.” Lawyers in London, Australia, and Canada assisted in reviewing records, collecting evidence, and assisting on strategy

W eimer is a Senior Associate at Norton Rose Fulbright, and a member of the Norton Rose Fulbright Pro Bono Committee.

for attorneys based in Texas. Of course, death row cases can be costly, which is why the firm carefully evaluates requests. “When we take on a death row case, we typically do so because we see a real due process concern,” said firm lawyer Layne Kruse, who has handled several death row matters over the years. “For example, with Mr. Cathey, the trial court concluded he was mentally retarded and should not be put to death, but the state appellate court disagreed.” And while the firm’s work has resulted in some inmates getting off death row, like Mr. Maldonado and Mr. Boyde, others have not. “You’ve got to hope for the best but be prepared for the worst,” said Kruse, who has had clients over the years in both situations. As for Mr. Moore’s case, hope prevailed. His case was remanded by the Supreme Court back to the TexasLAWYER court system for further AUSTIN proceedings. AL AL MAY 2017 | AUSTINLAWYER

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CAREY’S FINANCIAL KNOWLEDGE IS YOUR FINANCIAL EDGE. CAREY S. LEVA

Senior Vice President | Wealth Advisor 512.465.6594 | cleva@broadway.bank

INVESTMENTS ARE NOT FDIC INSURED | NOT GUARANTEED BY THE BANK NOT A DEPOSIT | NOT INSURED BY A FEDERAL GOVERNMENT AGENCY | MAY LOSE VALUE