Austin Lawyer, May 2019 by Austin Bar Association

austinbar.org MAY 2019 | VOLUME 28, NUMBER 4

Write This Address in Ink We’re Officially Homeowners!

hen 712 West 16th Street first came on the market it was a private family home. We knew we would have to jump through a lot of hoops to achieve the dream of making it the Austin Bar’s new permanent location. First, the Judges Hill Neighborhood Association—an organization that cares deeply about preserving the neighborhood’s heritage—needed to sign off on the rezoning. After several meetings and much discussion, the organization gave us its full support. With that done, we were ready for the next step: the City Council. In the last week of March, the Council officially agreed to rezone the home from single family to commercial. With those details attended to, we officially signed on the dotted line and closed on the house on April 16, 2019. We’re homeowners! Hilgers House now belongs to us! NOW WHAT?

Now we need to convert the house from a residence to a working, modern office. We

need to make sure the space is ADA-compliant. And with those renovations underway, we’re hoping to move over the summer. We also must raise $200,000 from our community in order to receive an additional $100,000 in matching funds from the Lola Wright Foundation. Hilgers House will bring the Austin Bar so many benefits —like the ability to invest more in community programs and street-level visibility—something we’ve never had before. This move gives us a permanent home that can never be taken from us—a home that’s affordable and sustainable both today and into the future. Your one-time gift to the campaign commemorates your leadership in Austin’s legal community. And you’ll be helping the Austin Bar put down permanent roots, for the first time in 126 years. When we mount the Leadership Wall in the main foyer of the house, will your name be on it? We hope you’ll join your colleagues and participate in the Our HomeLAWYER on Judges Hill AUSTIN AL AL capital campaign.

2019 OUR HOME

ON JUDGES HILL

CAPITAL CAMPAIGN

JOIN US ON THIS JOURNEY Visit our website, ourhomeonjudgeshill.com, for more information or to make a pledge.

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CONTENTS

AUSTINLAWYER MAY 2019 | VOLUME 28, NUMBER 4 AL A L INSIDE FEATURED ARTICLES Write This Address in Ink

President’s Column

We’re Officially Homeowners!

Briefs

LGBT Law Student Scholarship Applications Due May 15

Minority Bar Spotlight

Austin Bar Past-President Martha Dickie Receives Award From Anti-Defamation League

Pro Bono Spotlight

The Lawyer as Citizen in a Democracy under Stress

Opening Statement

American Inns of Court Now Accepting Applications

Third Court of Appeals Civil Update

12 Law Day 2019: Free Speech, Free Press, Free Society

13 Still Loving It Lawyers Club™ Honors 50 Year Lawyers

Third Court of Appeals Criminal Update

15 Planning for Children with Special Needs

Federal Civil Court Update

18 Austin Black Business Journal Names 2019 Top Ten

Federal Criminal Court News

AYLA

Practice Pointers

Super Lawyer Award Winners

29 2019 Pie Fest to Be First Major Event Held at Hilgers House

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CONNECTIONS

DEPARTMENTS

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LGBT Law Student Scholarship Applications Due May 15

he Austin Bar Foundation and the LGBT Law Section of the Austin Bar Association are honored to announce the Foundation’s fourth annual LGBT Scholarship. The Foundation will award $3,000 scholarships to two current students (including 2019 graduates) enrolled at a Texas law school. The award is intended to help defray expenses of pursuing a law-school education. Eligible students must be enrolled at a public or private law school located in the State of Texas and have demonstrated some commitment or contribution to the LGBT community or LGBT legal issues. This criterion will be broadly construed to include activities consistent with the Austin Bar LGBT Law Section’s purposes of promoting

education on issues relating to LGBT law, raising the profile and acceptance of LGBT individuals within the legal community, and promoting LGBT equality. The selection committee will also consider each applicant’s academic record, educational debt burden, and financial need. Applications and instructions for applying may be found at austinbar.org. Applications must be postmarked by May 15, 2019. The Foundation will announce recipients in June. Winners will be honored in person at the State Bar of Texas’s Annual Meeting, to be held June 13-14, 2019 in Austin. Applicants should be prepared to attend the Annual Meeting. ContactAUSTIN Gary Schumann LAWYER AL AL at gary@ssjmlaw.com with questions.

AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION Adam Schramek........................ President D. Todd Smith............................. President-Elect Kennon Wooten....................... Secretary David Courreges...................... Treasurer Amy Welborn �� Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION Jorge Padilla............................... President Sandy Bayne............................... President-Elect David King................................... Treasurer Rachael Jones............................ Secretary Austin Kaplan............................. Immediate Past President

EXECUTIVE OFFICES 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward........................... Executive Director Nancy Gray................................. Managing Editor Debbie Kelly............................... Director of AYLA Kennon Wooten....................... Editor-in-Chief

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Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors; legislation affecting Austin attorneys; and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District of Texas Federal Court and the Texas Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab.

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Austin Bar Past-President Martha Dickie Receives Award From the Anti-Defamation League

he the Anti-Defamation League of Austin held its 2019 Jurisprudence Luncheon on March 5, 2019 at the JW Marriott. The luncheon honors outstanding members of the legal community. Austin attorney Martha Dickie of Almanza, Blackburn, Dickie & Mitchell, a past-president of the Austin Bar Association, received the Trailblazer Award, and Former Speaker of the Texas House of Representatives Joe Straus received the Jurisprudence Award. The ADL’s Trailblazer Award recognizes an individual or organization whose pioneering contributions to the legal and/or civic arena have had an extraordinary and unique impact in furtherance of the ADL’s mission of securing justice and fair treatment for all. Dickie exemplifies all that this award stands for.

Her practice reflects a broad range of trial expertise focused on general civil/commercial litigation as well as malpractice and municipality defense. She has shown leadership in the legal community with a strong focus on inclusivity and support. Speaker Straus, winner of the Jurisprudence Award, is an example of an outstanding member of the legal community who exhibits a commitment to equality, justice, fairness and community service. As Speaker of the House, Straus was integral in prohibiting discriminatory legislation that would have infringed on the civil rights of the LGBTQ community. He furthered efforts to provide education to all and to make the State of Texas a more inclusive place. The ADL is a leading anti-hate organization. Founded in 1913 in response to an escalat-

Gary Zausmer of Enoch Kever with ADL Trailblazer Award winner Martha Dickie of Almanza, Blackburn, Dickie & Mitchell.

ing climate of anti-Semitism and bigotry, its timeless mission is to protect the Jewish people and to secure justice and fair treatment for all. Today, the ADL continues to fight all forms of hate with the same vigor and passion. The ADL is the first defense when

acts of anti-Semitism occur. A global leader in exposing extremism, delivering anti-bias education, and fighting hate online, the ADL’s ultimate goal is a world in which no group or individual suffersLAWYER from bias, AUSTIN L AL discrimination, or A hate.

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Our Home on Judges Hill Is a Reality

ast month, we closed on the Hilgers House. Soon, we will have a new headquarters for the Austin Bar Association, a home that promises to be transformative to our organization. It will provide us certainty in our budgeting process, investment in an asset (instead of rent to a landlord), the ability to create new and exciting projects and programming, and a beautiful space for hosting meetings and events. As we begin the transition to our new home, I would like to take a moment to reflect on the journey that brought us here. Knowing we were in a lease we could not afford to renew without significantly increasing dues, we began a concerted effort to search for a new space about two years ago. During that time, board members personally

toured many spaces, from office buildings to historic houses to our former federal courthouse. There were several times we believed we were on the cusp of finding our new space. But as many know, the search for a new home can be elusive. At one point, we were under contract for what we thought would be the perfect property, only to learn that it required millions (yes, millions) of dollars in repairs. At another point, we found what seemed to be a perfect building and location, only to learn it was outside of our price range. The Hilgers House was promising from the beginning. It is a beautiful, historic home that had been meticulously restored to its original splendor which will be great for special events. It is located in Judges Hill, a historic neighborhood with longstanding ties to the legal profession. It is centrally located on a corner

block, with a separate carriage house that can be used for meeting space. And importantly, we could afford it. Unfortunately, there was one very big drawback: It was zoned residential despite being surrounded by commercial properties. Austin Bar Executive Director DeLaine Ward signs the papers on Hilgers House with closing agent and So we put the Austin Bar Foundation board member Sara Foskitt. Hilgers House to the side and kept searchthe night, holding our breath as ing. But nothing was those on the dais contemplated quite right, and nothing seemed our future. We met with archito compare to that “house on tects, builders, bankers, interior Judges Hill.” After several designers, and capital campaign months and much negotiation, consultants, all in the hopes that we entered into an agreement to it would come together. purchase the property, continAnd last month, it did. gent on rezoning. Soon we were There is, of course, much meeting with neighborhood work left to be done. We need representatives and preparing our to raise more money in order presentations for City Council to fully transform the property and its commissions. We attended into a flourishing new headmeetings that lasted late into quarters with new furnishings, a renovated meeting space, and Now, after closing on Hilgers House, increased accessibility. But now, after closing on Hilgers House, we are certain of our path forward. we are certain of our path The search is over, and we have turned forward. The search is over, and we have turned the page to the the page to the next chapter in the next chapter in the history of the AUSTIN LAWYER history of the Austin Bar. L AL AustinABar.

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The Lawyer as Citizen in a Democracy under Stress BY MICHAEL CURRY

hese are challenging times for democracy. Authoritarianism is on the rise around the globe, and there are disturbing indications that our country is not immune from those influences. A case in point is the sustained attempt in recent years to undermine public confidence in bedrock institutions— most significantly the courts and the press. Corrosive attacks on the legitimacy of opponents, election outcomes, and law enforcement agencies are other tactics straight from the authoritarian’s playbook. Efforts to unfairly restrict or burden the right to vote, which have escalated since the U.S. Supreme Court’s decision in Shelby County v. Holder, 570 U.S. 529 (2013), combined with the longstanding practice of diluting voting rights through gerrymandering, strike at the heart of democracy. It is a sobering fact that, since the end of the Cold War, elected leaders have killed or mortally wounded democratic governance more often than military generals who assume power through force. In recent years, when democracies fail, it is rarely sudden. Such failure usually occurs through the slow but steady subversion of democratic institutions coupled with the erosion of democratic norms that have historically discouraged elected officials and institutions from abusing power. Fortunately, in our country, the judicial branch has largely checked illegal anti-democratic policies, and we can be proud of the indispensable role lawyers have played in challenging laws and actions that undermine democratic rights. Lawyers as advocates and lawyers as judges have been among the most effective guardians of democracy. But what about the lawyer as citizen?

Less than one-half of one percent of the population in the United States has a law license. Think about that. In our nation of laws, only a relative handful of people have formal legal training. This defines the unique role that lawyers have in a democracy based on the rule of law. We understand not just the reach and limits of the law, but the importance of rules and norms and what happens when those are ignored—whether in the courtroom or society. Our legal training, experience, and stature give us a rich understanding of democratic processes and a unique opportunity as citizen-lawyers to contribute—to be champions of a free and fair democratic nation. And we have a special obligation as individuals and as a profession to respond to words and actions that weaken our democracy or violate the norms of civil society. Can we remain silent when, for example, the impartiality or motives of judges are wrongfully impugned; when members of the press are bullied and attacked in an attempt to undermine their credibility and stifle criticism; when voting rights are burdened or diluted for partisan political gain; when patently unconstitutional executive orders or laws are enacted or proposed; or when power is abused and norms are broken in an effort to tilt, if not pack, the courts? Can we stand by while actors, including government officials, generate falsehoods on matters big and small with such regularity that it cripples the marketplace of ideas and normalizes lying and misinformation as an accepted part of the democratic process? Can we fail to worry that these anti-democratic actions diminish our country’s ability to oppose democratic crackdowns in other countries

Lawyers as advocates and lawyers as judges have been among the most effective guardians of democracy. But what about the lawyer as citizen? and send the wrong message to autocrats around the world? In these times, our profession must accept its special obligation to promote democratic values. As lawyers, we have a platform to individually and collectively engage the public through opinion pieces and letters in local and national newspapers, magazines, and online platforms, and to visit with public officials and their staff about laws and policies that impact democratic rights and processes. We can testify at the legislature, at commissions, and at city councils against anti-democratic legislation or ordinances. We can seize the opportunity to speak to neighbors, schools, and civic groups about the importance of engaging in the political process with passion but also with mutual toleration, respect, and restraint. We can lend our support and our voice to candidates who support pro-democracy policies and can vociferously oppose those who do not. We can honor, boost, and assist our fellow lawyers who are on the frontlines defending

our democratic rights in court. We can accept the challenge of running for political office, and encourage and support law students and young lawyers to make room in their lives and practices for public service. At the very least, we can model good citizenship by actively participating in our democratic society and by furthering and assisting others in doing so. To be sure, no single profession or group is charged with or can take credit for resisting attacks on democratic values. But our grounding in the law, which is the superstructure of our democracy, calls upon us as citizen-lawyers AUSTIN LAWYER L AL to be leaders in the A fight. References: Levitsky & Ziblatt, “How Democracies Die” (New York: Crown 2018); Albright, “Fascism—A Warning” (New York: Harper 2018); Meacham, “The Soul of America – The Battle for Our Better Angels” (New York: Random House 2018); Califano, “Our Damaged Democracy” (New York: Touchstone 2018).

Michael Curry is a 1976 graduate of the University of Texas School of Law and a mediator. MAY 2019 | AUSTINLAWYER

American Inns of Court Now Accepting Applications

he Austin chapters of American Inns of Court are accepting applications for the 2019-20 term. The American Inns of Court are designed to improve the skills, professionalism, and ethics of the bench and bar.

BARBARA JORDAN INN OF COURT

To apply for the Barbara Jordan Inn of Court, send a résumé, cover letter, and two letters of recommendation to barbarajordaninnofcourt@ gmail.com by May 31, 2019. Barbara Jordan American Inn of Court members include appellate justices, civil and criminal court trial judges, and attorneys in many practice areas, including civil litigation, criminal litigation, probate, immigration law, real estate, and family law. The Barbara Jordan American Inn of Court strives for diversity both in its membership and in its practice areas. Monthly meetings are held from September through April on the second Tuesday of the month, with an orientation meeting in September and a social event with other Austin-area Inns in May. At the monthly meetings, team members present one-hour programs after a social hour. Teams meet before their scheduled program to select, prepare, and practice their presentations regarding legal issues. LLOYD C. LOCHRIDGE INN OF COURT

To apply for the Lloyd C. Lochridge Inn, submit a letter stating your interest in joining the Inn, a résumé, and two letters of recommendation from the legal community by May 24, 2019. Email your application documents to Ryan Botkin at ryan@wittliffcutter.com. Please do not fax or mail your application. Applications are welcome from any practicing litigation attorney or judge.

Membership is limited to the number of available openings. Successful applicants are admitted as Associates (licensed less than 10 years), or Barristers (licensed 10 to 20 years). The Lochridge Inn meets in the evenings monthly from September to April and fosters dialogue on legal issues, the art and science of trial advocacy, and discussion about high-profile cases. Contact Ryan Botkin at 512.960.4730 or ryan@wittliffcutter.com with any questions. ROBERT W. CALVERT INN OF COURT

To apply for the Robert W. Calvert Inn of Court, submit a letter of interest, a résumé, and two letters of recommendation (preferably from members of the legal community) to Sherine Thomas at Sherine. Thomas@traviscountytx.gov by May 31, 2019. The Robert W. Calvert Inn of Court is the first American Inn established in Austin and has been awarded Platinum recognition by the American Inns of Court. Applications are welcome from any practicing attorney or judge in Travis County and the contiguous counties. Membership is open toAUSTIN all licensed Texas attorneys, without regard to LAWYER AL AL area of practice or trial experience.

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

AUSTINLAWYER | MAY 2019

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Pamela Armour Diego Cervantes Callie Conklin Matthew Fagan Laura Frederick Justin Freeman Dennis Grebe Matthew Heller Meredith McIver John Reynard Kyla Risko Allison Schmitz

AWARDS

Missy Atwood, Karen Burgess, and Casey Dobson have become Fellows of the American College of Trial Lawyers. Atwood and Burgess will join existing Fellow Jerry Clements to become part of an elite group of female attorneys in Austin inducted into the exclusive litigation organization. Amy Meredith was awarded the Never Quit Service Award from the American Federation of State, County and Municipal Employees in February. She is

TOP ROW: Atwood, Burgess, Danowsky, Dobson, Mills Gregston, McCreight BOTTOM ROW: Meredith, Saenz, Standefer, Wheatley

a member of AFSCME Local 1624. Meredith, a member of the Austin Bar Board of Directors, is a Travis County Assistant District Attorney and chief of the Public Integrity Unit. NEW TO THE OFFICE

Tracy McCreight and Benton Wheatley have joined Duane Morris’s Austin office as partners in the firm’s trial practice group, along with Associate Meredith Mills Gregston. Leonard Ray Saenz has joined Sheridan Family Law as a

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partner. Saenz is a retired Travis County Associate Judge and is board certified in both family and criminal law. He handles primarily family law cases, and also has a mediation practice. In addition, he consults with attorneys on litigation matters. MOVING ON UP

Brent Standefer, Jr. is now a partner at Fenimore Kay Harrison Ford. Standefer’s practice focuses on the representation of public and privately held financial institutions, holding

companies, and other financial services businesses in a broad range of corporate, securities, and regulatory matters. Jason Danowsky has been promoted to partner at FosterDanowsky, previously FosterLaw. The firm provides representation to communications companies and professional licensees. Graves Dougherty Hearon & Moody has a new address inside Austin’s Frost Tower. The firm is now located in Suite 2700 at 401 Congress Ave.

Law Day 2019: Free Speech, Free Press, Free Society

resident Dwight Eisenhower established the first Law Day in 1958 to mark the nation’s commitment to the rule of law. In 1961, Congress issued a joint resolution designating May 1 as the official date for celebrating Law Day, which was subsequently codified (U.S. Code, Title 36, Section 113). Every president since has issued a Law Day proclamation on May 1 to celebrate the nation’s commitment to the rule of law. Law

Day underscores how law and the legal process contribute to the freedoms that all Americans share. Law Day also provides an opportunity to recognize the role of courts in this democracy and the importance of jury service. In the United States and around the world, the freedom of speech and of the press are among the most important foundations for a free society. Free speech and free press are prominent topics in public discourse and litigation. It is impossible to

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imagine a free society without these individual liberties, yet historical and current debates surrounding them continually challenge us to consider their boundaries and resilience. Changes in technology have reshaped how free speech and free press work in the everyday world. Law Day 2019 offers the opportunity to explore this pair of freedoms by probing their history and considering their future. Should all speech be “free?” What is the role of government in regulating or protecting the press? Should speech or the press be constrained through laws or norms? Can a free society exist without free speech and free press? The 2019 Law Day theme— Free Speech, Free Press, Free Society—focuses on these cornerstones of representative government and calls on us to understand and protect these rights to ensure, as the U.S. Constitution proposes, “the blessings of liberty for ourselves AUSTIN LAWYER AL AL and our posterity.” Sources: State Bar of Texas, www.texasbar.com/ Content/NavigationMenu/AboutUs/ LocalBarServices/LocalBarServices/ Law_Day, “Law Day.” American Bar Association, www. americanbar.org/groups/public_ education/law-day/law-day-2019, “Law Day 2019.”

AUSTINLAWYER | MAY 2019

Still Loving It Lawyers Club™ Honors 50 Year Lawyers

n April 2, 2019, the Austin Bar’s Still Loving It Lawyers Club™ section met for lunch at the Austin Club. They were honored to have 92-year-old Justice Frank Maloney as its featured speaker. Maloney, whose talk was titled “60 Years in Retrospective,” graduated from the UT School of Law in 1952. Highlights of his career include serving as a judge on the Texas Court of Criminal Appeals, an Assistant District Attorney for Travis County, and an Assistant Attorney General for the State of Texas. As a criminal defense lawyer who served as president of the National Association of Criminal Defense Lawyers, he tried many celebrated criminal cases. Judge Susan Steeg had the privilege of presenting Justice Maloney with his State Bar of

ABOVE: (from left) Malcolm Harris, Laura Fowler, Judge Susan Steeg, with Justice Frank Maloney.

Texas 50 Year Pin. Also recognized at the luncheon for 50 or more years of distinguished service were Gilbert Prudhomme, Robert Fowler, Thomas Ausley, Wayne Meissner, Allen Hill, and Malcom Harris. Membership in the Still Loving It Lawyers Club™ is open to all Austin Bar members.

LEFT: (from left) Honored for their 50+ years of distinguished service were Gilbert Prudhomm, Robert Fowler, Justice Frank Maloney, Thomas Ausley, Wayne Meissner, Allen Hill, and Malcolm Harris.

The section continues in the tradition of the Justice Mack Kidd Senior Section and offers enhanced outreach to seasoned attorneys who still love using their skills as lawyers in a variety of ways. Section dues are $25 and include monthly lunch meetings offering CLE on

various relevant topics. Contact the chair of the Still Loving It Lawyers Club™, Laura Fowler, at lfowler@thefowlerlawfirm. AUSTINLAWYER AL AL com, for more information.

MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS

INTERESTED IN WRITING FOR AUSTIN LAWYER? Contributing authors sought for inclusion in Austin Lawyer. Articles on various legal-related topics are considered for publication monthly. Please limit submissions to between 500 and 750 words. Send articles to Nancy Gray, Managing Editor, at nancy@austinbar.org. Submission is not a guarantee of publication.

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AUSTINLAWYER MAY 2019 | AUSTINLAWYER

PRO BONO SPOTLIGHT

Volunteer Legal Services of Central Texas Pro Bono Made Easy BY PRISCILLA CORTEZ, VLS EXECUTIVE DIRECTOR, AND ESTHER REYES, VLS OUTREACH COORDINATOR

VLS’s Attorney-on-Call program is a perfect way for attorneys to volunteer their time with minimal disruption to their workday.

Cortez

vital component of the legal assistance available to low-income and indigent Central Texans is the pro bono service performed by dedicated attorney volunteers. Many attorneys believe in the value of pro bono work, but their commitment to it can sometimes get overshadowed by the demands of everyday life. There simply may not be enough time to search for the perfect pro bono legal opportunity that aligns with work and personal schedules and interests. It can also be hard to decide among the many types of pro bono opportunities or seem overwhelming to learn a new area of law.

Reyes

Volunteer Legal Services of Central Texas (VLS) understands the demanding schedules and other constraints most attorneys experience and has launched an effort aimed at making pro bono work more accessible and easy. VLS’s Attorney-on-Call program (AOC) is a perfect way for attorneys to volunteer their time with minimal disruption to their workday. Attorneys simply sign up to be available to give legal advice via telephone to clients who are attending VLS’s outreach clinics in the outer parts of Travis County. The AOC program emerged as an effort by VLS to respond to the massive growth and population change in Austin, particularly as

many in poverty have moved out of the city and away from needed services because of a continued increase in costs of living. Every month, VLS offers a number of outreach clinics at local community centers during the day in outlying areas of Travis County, including Manor, Pflugerville, and Jonestown, as well as in south Austin. At these outreach clinics, people can inquire about and apply for pro bono civil legal assistance, and obtain immediate legal advice. AOC IS AS EASY AS 1-2-3

1. VLS’s Outreach Coordinator staffs two- to three-hour outreach clinics, meeting with applicants interested in receiving civil legal assistance through VLS and screening for income eligibility and type of legal needs. 2. For qualifying applicants, the Outreach Coordinator calls the attorney volunteer and allows the applicant to speak with him or her for 15 minutes.

3. During the telephone session or immediately after, the attorney volunteer completes and returns an interview form that is specific to the applicant and his or her legal issue(s). VLS attorney volunteers are an integral part of our pro bono legal programs and services and help us advance our mission to ensure that poverty is not a barrier to justice. We offer diverse pro bono opportunities throughout Central Texas for every interest, schedule, and level of experience. Through our training and support services, VLS can help you serve as an effective advocate for those in need in our community. We invite you to join the AOC program or the many other pro bono volunteer opportunities available. To sign up or for more information, please contact VLS Outreach Coordinator, Esther Reyes at ereyes@vlsoct.org or AUSTIN LAWYER AL AL 512.640.7748.

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

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Planning for Children with Special Needs BY MELISSA DONOVAN

or many attorneys, “complicated” estate plans mean estate tax issues or complex asset structures. But for many families, “complicated” means finding the resources, both financial and personal, to ensure a child with special needs thrives when parents are not around. The cost of raising

to guide them on their journey. Parents need to consider what school programs are available, the necessity for guardianship, availability of government benefits, and ensureing long-term the availability of those benefits. A child’s prognosis is of utmost importance. Many parents are told they need a guardianship, or they need a Special

To ensure benefits are maintained, a Special Needs Trust may be necessary. These trusts come in two main varieties— first-party and third-party. a child with special needs can be staggering. According to the CDC, caring for a child with Down Syndrome is 12 times more expensive than caring for a child without. A child under 18 may not qualify for government aid programs due to the parents’ income and assets. At 18, parents’ assets and income no longer count against that individual and he may qualify for Medicaid and Supplemental Security Income (SSI), programs that are invaluable to the beneficiary. Parents of children with special needs have a lot on their plate in simply caring for their child’s needs. It is our job, as attorneys and advisors,

Needs Trust. Maybe they do, but there may be less-restrictive options. Each case is unique. If the child’s diagnosis is severe and he will not have capacity to sign powers of attorney, then the parent should consider guardianship. Without a guardianship in place, once the child turns 18, assisting in medical and financial decisions becomes difficult if not impossible. However, if the individual has competency, powers of attorney and supported decision-making agreements may be sufficient. To ensure benefits are maintained, a Special Needs Trust may be necessary. These trusts come in two main varieties— first-party and third-party. A

First-Party Special Needs Trust is created by the individual and the individual’s parent, grandparent, or legal guardian and is funded with the beneficiary’s assets. A Third-Party Special Needs Trust is created by someone other than the beneficiary and funded with third-party assets. No particular familial relationship is necessary. First-party trusts must have a provision allowing Medicaid to recover money spent on the beneficiary during his lifetime. Third-party trusts should never have such a provision, so that any remaining funds can go to other family members at the beneficiary’s death. ABLE accounts are also available to individuals with special needs. Structured similarly to 529 accounts (tax-free college savings plans), ABLE accounts allow individuals to have up to $100,000 in the account and maintain qualification for SSI. Anything over $100,000 causes a loss of SSI qualification, but Medicaid qualification is maintained until the account reaches $370,000. A Medicaid recipient can have $15,00 placed into this account each year. In addition to the annual $15,000 limit, the Tax Cuts and Jobs Act of 2017 expanded contributions to allow employed beneficiaries to also contribute the lesser of the federal poverty line for a single household ($14,380 in 2019) or the beneficiary’s annual income into the account. One may also transfer funds from a 529 account to an ABLE account without penalty, provided that the transfer is within the $15,000 annual contribution limit. Distributions from the ABLE account used for Qualified Disability Expenses will not count as income or assets to the beneficiary and will avoid income tax and penalties. However, while ABLE accounts are a wonderful new tool, they

Melissa Donovan is an associate attorney with The Wiewel Law Firm. Her practice focuses on elder law, estate planning, and special needs planning.

too have drawbacks, most importantly—Medicaid payback. It is important to remember that special-needs planning does not solely affect estate planners. Attorneys across multiple practice areas, particularly personal injury and family law, should be aware of how the funds at issue in cases can affect a person on Medicaid or SSI. Whenever a plaintiff has special needs, you must consider the effect any settlement or reward will have. Any money awarded to the plaintiff should be placed into a properly structured First-Party Special Needs Trust. In divorce cases, we must be careful about how child support payments are structured, especially when support payments extend beyond the child’s 18th birthday. There is an ever-growing need for lawyers to be aware of how to assist clients with these needs. In the last 20 years, we have seen a 600-percent increase in autism diagnoses alone. As the likelihood of running across these issues in our practice increases, it is imperative that we become aware of the problems and the solutions available to our clients. The more we know, AUSTIN LAWYER L AL the more we can A help. MAY 2019 | AUSTINLAWYER

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Saxon Words and Romance Words, Part 2 BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

ast month I introduced a way to think about plain words versus fancy ones: sometimes it’s the difference between words of Saxon origin and words of Romance origin. As a refresher, and to set the stage for this column’s focus, try this quiz. For each Saxon-named animal, give the French (Romance) name for the type of meat: chicken, cow, deer, sheep, and pig. (Answers are at the end of the column.) Now let’s discuss contracts and other binding legal documents. They often contain Saxon-Romance pairs: agree and covenant, cease and desist, due and payable, hold harmless and indemnify, sell and convey, true and correct, and will and testament. Why?

of English, legal scribes often had to decide what words to use when “French and English each provide a copious supply of relevant items.”1 Often they didn’t choose—they used both. As Crystal puts it, “Old English goods and Old French chattels resulted in Middle English legalese, goods and

“Old English goods and Old French chattels resulted in Middle English legalese, goods and chattels.”Sometimes the pairs were synonyms, sometimes they were subtly different, and sometimes they were paired out of “stylistic habit, perhaps fostered by their undoubted rhythmical appeal in oral performance.” During the 1200s, French became the primary language of the law in England, but in the 1400s and after, English began to replace French as the language of the upper classes. (History lesson omitted.) Hence the Saxon names for farm animals and the Romance names for their meat when served—as seen in our quiz. English also began to replace French as the language of the law. Thus, as explained by David Crystal in The Stories

chattels.” Sometimes the pairs were synonyms, sometimes they were subtly different, and sometimes they were paired out of “stylistic habit, perhaps fostered by their undoubted rhythmical appeal in oral performance.”3 Many of these doublets persist today, as we see in the pairs listed above. We also see triplets: give, devise, and bequeath; ordered, adjudged, and decreed; and right, title, and interest. Old legal language isn’t 2

necessarily bad legal language, so how should legal drafters address these doublets, triplets, and longer strings? My advice here relies on my preference for plain, direct words and on the expertise of Kenneth Adams in his Manual of Style for Contract Drafting.4 First, do enough research to decide whether the doublet, triplet, or string contains words that differ in meaning or whether they’re true synonyms. (Sources to consult: Adams’s Manual of Style, Garner’s Dictionary of Legal Usage, and Black’s Law Dictionary.) If they’re not true synonyms, decide which meanings you intend and keep only the words you need. If you have true synonyms, do your best to pick one word that conveys your intended meaning and delete the others. For example, in most contracts, sell and convey can be shortened to sell. If you intend separate actions—selling the item and then conveying the item to the buyer—then separate provisions requiring the seller to both sell the item and deliver it would be better.5 What about the stock judicial phrase ordered, adjudged, and decreed? Certainly it’s harmless as is, but it would also certainly be harmless to shorten it to ordered.

And this monster is still sometimes used with security interests: grant, assign, convey, mortgage, pledge, hypothecate (what?), and transfer. Adams says it can be shortened to grant.6 To those who say that the extra words are harmless, so there’s no reason to excise redundancies, I can say only this: You’re mostly right. But litigation over the standard phrase indemnify and hold harmless gives pause. Some courts say they’re synonyms, while others say they’re not. Ultimately, a knowledge of Saxon-Romance pairs might help you streamline and improve your contracts. (Quiz answers: chicken/ poultry, cow/beef, deer/venison, AUSTIN LAWYER AL AL sheep/mutton, and pig/pork.) Footnotes 1. David Crystal, The Stories of English 152 (2004). 2. Id. 3. Id. 4. Kenneth A. Adams, A Manual of Style for Contract Drafting 6-7 (3d ed. 2013). 5. Id. at 7. 6. Id. at 292-93. Wayne Schiess’s Austin Lawyer columns are collected in a book available on Amazon.com: Legal Writing Nerd: Be One.

MAY 2019 | AUSTINLAWYER

Austin Black Business Journal Names 2019 Top Ten Super Lawyer Award Winners

he Austin Black Business Journal held a reception on March 21, 2019 at Huston Tillotson University’s Center for Entrepreneurship and Innovation to celebrate the recipients of the Journal’s 2019 Top 10 Super Lawyer Awards. These awards recognize black professionals in the legal field who have achieved professional excellence and have actively paved the way to success for others. “These individuals demonstrate brilliance in a variety of professional settings. They have reached the pinnacle of their careers and still they strive for more,” said Black Business Journal Publisher Anita C. Roberts. “It is quite an honor to be recognized as one of the top Central Texas lawyers by the Black Business Journal,”

AUSTINLAWYER | MAY 2019

Justice Dale Wainwright said. “This recognition and its exposure through the Journal’s expansive readership hopefully will inspire the next generation to dream big.” This year’s Top 10 Super Lawyer honorees are: • Michelle Earley, partner at Locke Lord; • Edward Fernandes, partner at Hunton Andrews Kurth; • Shafeeqa Giarratani, partner at Ogletree, Deakins, Nash, Smoak & Stewart; • Wallace B. Jefferson, partner at Alexander Dubose Jefferson & Townsend; • Bill Jones, principal at The Jones Firm; • Karen M. Kennard, shareholder at Greenberg Traurig; • Demetrius G. McDaniel, shareholder at Greenberg Traurig; • Nikelle S. Meade, partner at Husch Blackwell LLP;

(from left) Anita Roberts, Judge Lora Livingston, Michelle Earley, former Texas Supreme Court Justice Dale Wainwright, Shafeeqa Giarratani, Karen Kennard, Destiny Chance, Nikelle Meade, Ed Fernandes, Leonard Woods, and Demetrius McDaniel.

• Dale Wainwright, shareholder at Greenberg Traurig; and • Leonard Woods, partner at Duggins Wren Mann & Romero. “Congratulations not only to these incredible honorees but

to the companies who see their value and acknowledge their worth,” said Roberts. “These companies show first-hand their commitment to diversity and inclusion is a cornerstone of the AUSTINLAWYER AL AL organization’s core values.”

THIRD COURT OF APPEALS CIVIL UPDATE

The following are summaries of selected civil opinions issued by the Third Court of Appeals during March 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of April 2, 2019.

ATTORNEY’S FEES: Court reverses failure to award attorney’s fees. State v. Buchanan, No. 03-1800120-CV (Tex. App.—Austin Mar. 27, 2019, no pet. h.). State pursued a lawsuit against Buchanan for delinquent taxes. The jury found for State but awarded no attorney’s fees. The trial court signed a judgment on the verdict. State argued that an award of fees under Government Code § 2107.006 was mandatory. The court of appeals pointed out that “may recover” attorney’s fees statutes, like § 2107.006, are not discretionary. When a statute provides for mandatory recovery of fees, the trial court has no discretion but to award them if the fees are pleaded and proved. State testified to the Arthur Andersen factors to support the claimed award. Buchanan did not contest the hourly rate or contend that the legal services were of no value. The court held that an award of no fees was

improper. The court reversed and remanded the attorney’s fees issue. GOVERNMENTAL IMMUNITY: Water utility immune from damage claim. Holms v. W. Travis Cty. Pub. Util. Agency, No. 03-17-00584CV (Tex. App.—Austin Mar. 13, 2019, no pet. h.) (mem. op.). Holms reported a sudden increase in his water bills. Utility replaced the meter and Holms’s water bills returned to normal. When Utility refused to credit his account for the overpayments, Holms sued. The trial court granted Utility’s plea to the jurisdiction. Holms claimed immunity was waived under the Tort Claims Act § 101.0215(a) for damages arising from the governmental function of providing water and sewer service. The court of appeals concluded that § 101.025 is not an independent waiver of immunity. Instead, the “under this chapter” language limited liability to governmental functions that involve property damage, personal injury, or death under § 101.021. The court affirmed. ARBITRATION: Contract’s accountant-determination provision is not an arbitration. Bobcat N. Am., LLC v. Begley, No. 03-18-00033-CV (Tex. App.—Austin Mar. 20, 2019,

no pet. h.) (mem. op.). Contract provided for a CPA to resolve closing statement disputes. After CPA determined a disputed issue, Bobcat sued to enforce the determination as an arbitration award. The trial court denied Bobcat’s application. Although the contract described CPA “as an expert and not as an arbitrator,” the court of appeals concluded that such language did not determine whether the procedure was an arbitration. Citing federal court authority, the court held that the provision means CPA resolves disputes using accounting principles as opposed to considering testimony and arguments. Because the contract provided that CPA “resolved” disputes, the court held that CPA’s determination was final but that the parties’ obligations to pay must be determined by an arbitrator. Bobcat had not invoked the contract’s arbitration provision; thus, the trial court lacked jurisdiction. The court affirmed. GOVERNMENTAL IMMUNITY: Bar immune from damage claim. State Bar of Tex. v. Wilson, No. 03-18-00649-CV (Tex. App.—Austin Mar. 20, 2019, no pet. h.) (mem. op.). Wilson contended that a 1994 letter in which he purportedly resigned from the practice of law was a

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.

forgery. Wilson contended that Bar refused to investigate the letter’s authenticity and refused to reinstate him. Wilson sued Bar for negligent and willful conduct and sought declaratory relief and damages. The trial court overruled Bar’s plea to the jurisdiction. According to the court of appeals, Bar is a governmental entity protected by sovereign immunity. The court concluded that because Wilson’s claims did not challenge a statute or ordinance, there was no waiver of immunity under the UDJA. Further, the court determined that the Tort Claims Act does not waive immunity for negligent use of information contained in documents. AUSTINThe LAWYER AL AL court 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.

Cases summarized are from October 2018 and subsequent history is current as of April 1, 2019.

PROVING AND CHARGING VENUE: In sexual-assault case, venue was proper in county of defendant’s apprehension and extradition, and failure to properly charge jury on sexual-assault venue provision did not egregiously harm defendant. Amador v. State, Nos. 03-1600681-CR & 03-16-00682-CR (Tex. App.—Austin Oct. 5, 2018, no pet.) (mem. op., not designated for publication). Amador was convicted in Hays County of sexual assault of a child. Among several issues on

appeal, Amador asserted that the evidence was insufficient to prove that the offense was committed in Hays County. The victim in the case had provided inconsistent testimony, claiming that she could not remember the location of the motel where the assault had occurred but that it might have been “somewhere around Round Rock or Austin.” The appellate court observed that, even if the assault had not occurred in Hays County, a special venue provision made venue proper in “the county in which the defendant resides, the county where he is apprehended, or the county to which he is extradited.” Tex. Code Crim. Proc. art. 13.19. Hays County was the county of both apprehension and extradition. Moreover, the offense was sufficiently connected to Hays County in that the victim resided there and at least some of the criminal conduct had occurred there. Amador also asserted that the trial court’s instruction on the sexual-assault venue provision, article 13.15, was erroneous because it omitted statutory language referring to the abduction and sexual assault of the victim, thereby making it easier for the State to prove venue. The appellate court agreed that this was erroneous but concluded that Amador was not egregiously harmed by the error, observing that the jury had been properly instructed on the article 13.19

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venue provision, that “the record contained ample evidence that appellant engaged in sexual intercourse with A.S.,” and that the State did not emphasize the erroneous venue instruction in its argument. MOTIONS FOR NEW TRIAL AND MISTRIALS: Trial court abused its discretion in granting defendant new trial when the only claim raised in motion was explicitly rejected by trial court. State v. Delacruz, No. 03-1800196-CR (Tex. App.—Austin Oct. 5, 2018, pet. ref’d) (mem. op., not designated for publication). Delacruz was charged with driving while intoxicated. At trial, an exhibit containing the results of Delacruz’s breath test was conditionally admitted into evidence, under the assumption that the intoxilyzer operator (IO) would later testify as to the results of the test. However, the IO was unavailable to testify, and the trial court instructed the jury to disregard the evidence related to the breath test. Delacruz moved for a mistrial, which the trial court denied. Four days after trial, the trial court held a hearing at which Delacruz requested the trial court to set aside the guilty verdict. He claimed that this request was “distinct from a motion for new trial.” The trial court informed Delacruz that his two options were “to either file a motion for new trial or to file notice of appeal.” Later that day, Dela-

cruz filed a motion to set aside the guilty verdict and declare a mistrial. The trial court held a hearing on the motion and found that there had been no prosecutorial misconduct, but nevertheless granted the motion for a mistrial. On the State’s appeal of that ruling, the appellate court reversed. The court first concluded that declaring a mistrial had been improper, because the trial had already ended “with a determination on the merits,” and the trial court had already signed the judgment of conviction memorializing the jury’s guilty verdict and the trial court’s jail sentence. However, the appellate court construed Delacruz’s motion to set aside the verdict as a motion for new trial and concluded that the trial court’s order was the functional equivalent of an order granting a motion for new trial. The court then proceeded to consider the merits of the motion, observing that the only legal claim raised in the motion was prosecutorial misconduct, specifically the contention that the prosecutor had misled the court as to the IO’s availability. The trial court had explicitly rejected this claim, stating that the prosecutor had been “sloppy” rather than “conniving.” Consequently, the appellate court concluded that there was no legal basis for granting a new trial and that the trial court had abused its LAWYER discreAUSTIN AL AL tion in concluding otherwise.

MAY 2019 | AUSTINLAWYER

FEDERAL CIVIL COURT UPDATE

Wilson Stoker is board certified in labor and employment law by the Texas Board of Legal Specialization and senior counsel with Cokinos | Young.

The following are summaries of selected civil opinions issued from the U.S. Court Of Appeals for the Fifth Circuit. The summaries are intended as an overview; counsel are cautioned to review the complete opinions.

ADMINISTRATIVE LAW: A court must provide a meaningful review of an agency finding and may not substitute its judgment for that of the agency. Avalon Place Trinity v. U.S. Dep’t of Health & Human Servs., No. 17-60781 (5th Cir. Mar. 4, 2019) (per curiam) (not designated for publication). The Texas Department of Aging and Disability Services (DADS) conducted a review to determine if Avalon Place Trinity, a nursing home, had complied with patient safety regulations under 42 C.F.R. Prt. 483. DADS cited Avalon for non-compliance with several regulations meant to protect patients against mistreatment and neglect, focusing on the treatment of two residents—one resident who died from injuries sustained after falling in a bathroom and another resident 22

AUSTINLAWYER | MAY 2019

who had a wheelchair on which Avalon failed to place an alarm designed to notify staff in case of a fall. The Centers for Medicare & Medicaid Services (CMS) imposed against Avalon a monetary penalty of $81,650. Avalon requested a hearing at the Department of Health & Human Services (HHS) to contest the citations and penalty. An HHS administrative law judge (ALJ) found that CMS’s determination that Avalon was in substantial non-compliance was not clearly erroneous and found the civil penalty to be reasonable. Avalon appealed the ALJ’s findings related to five regulations to HHS’s Departmental Appeals Board (DAB). DAB determined that the ALJ’s findings were supported by substantial evidence. On appeal to the Fifth Circuit, Avalon challenged four of the ALJ’s findings. A reviewing court may only overturn an agency’s finding of fact if the finding is “unsupported by substantial evidence” or is “arbitrary, capricious or an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2). The reviewing court held that DAB correctly found that Avalon failed to comply with federal regulations that require facilities to: develop and implement policies that guard against patient neglect; keep accurate health assessments of residents; remain as free from accident hazards as possible and properly supervise residents to prevent accidents; and administer a facility “in a manner that enables it to use its resources to attain the highest practicable physical, mental, and psychosocial well-being of each resident.” The ALJ heard evidence that Avalon failed to monitor a patient, despite documentation that he needed assistance with all self-care including walking and toileting; and yet Avalon failed to have staff monitor him and he

fell and suffered a fatal head injury. Further, record evidence supported the finding that Avalon failed to implement care plan instructions designed to prevent further falls of a second patient, specifically by failing to properly install alarms on her wheelchair. In affirming DAB’s decision, the Fifth Circuit held that there was substantial evidence to determine that Avalon was noncompliant with federal regulations and that the assessed fine was reasonable. EMPLOYMENT LAW: A trial court’s post-trial analysis of equitable remedies must take into account and not contradict a jury’s findings, and must be based on permissible factors. Bogan v. MTD Consumer Grp., Inc., No. 17-60697 (5th Cir. Mar. 26, 2019). A fourday trial resulted in the jury finding that employer MTD discriminated against former employee Bogan on the basis of her race and/or gender and awarded her one dollar. The district court held a hearing on Bogan’s request for equitable remedies of front pay or reinstatement under Title VII. The court did not award front pay, finding that MTD established that Bogan did not mitigate her damages, and denied reinstatement, citing four factors. Plaintiff appealed. As for the issue of front pay, the appellate court held that there was no clear error in the district court’s finding that Bogan did not use reasonable diligence to obtain substantially equivalent employment and denying front pay on that basis. And as for the issue of reinstatement, the appellate court noted that this case presented “an unusual situation in which no prospective (or meaningful retrospective) relief was awarded after a finding of discrimination.” In reviewing the district

court’s application of four factors in denying reinstatement, the appellate court first noted that, because Bogan’s position no longer existed as it did during her employment, the district court properly determined that reinstatement would require training on new equipment and that the company did not have an opening. Secondly, the court properly relied on the finding that Bogan had intended to change careers. The district court, however, erred in its application and interpretation of the third and fourth factors. For the third factor, the district court cited MTD’s argument that it “would have terminated Plaintiff in the absence of any purported discrimination” because of “her inability to follow the rules and her attitude.” The district court did not find that MTD proved this statutory defense; it only noted MTD’s position. Further, because the jury rejected this assertion in finding that MTD was liable for discrimination, it was improper for the district court to override the jury’s fact-finding on this question when deciding equitable relief and to allow the issue to be re-litigated during the remedial phase. Fourth, the district court only cited discord between the parties to support its denial of reinstatement. MTD, however, failed to present evidence that the relationship had been damaged beyond the extent which normally accompanies trial. And the district court failed to find that the relationship between Bogan and MTD was irreparably damaged, simply noting the hostility was “palpable” without citing any evidence beyond that associated with trial and the inconvenience associated with reinstatement. The district court thus erred in considering two of the factors in denying reinstatement.

Because remedial discretion is vested only in a district court, the Fifth Circuit remanded for further proceedings based on the two factors that remained or other permissible considerations. JURISDICTION: When a “purely legal question of contract interpretation” is at issue, a reviewing court may reverse and render, and not merely remand. BP Expl. & Prod., Inc. v. Claimant ID 100281817, No. 18-30394 (5th Cir. Mar. 20, 2019). When the Deepwater Horizon oil rig exploded on April 20, 2010, David West was playing professional basketball for the New Orleans Hornets and was four years into a fiveyear contract. The contract was “frontloaded,” meaning West’s annual salary decreased every year of the contract—including from 2009 to 2010. West received all $45 million owed to him under the contract. Despite receiving all the salary owed under his contract, West still submitted an “Individual Economic Loss Claim” under the Deepwater Horizon Economic and Property Damages Settlement Agreement. These claims can be submitted only by individuals “who seek Compensation for lost earnings from employment due to or resulting from the Spill.” And the Individual Economic Loss Claim form states, “on its very first page,” that it covers only “individuals who have experienced income losses caused by the Spill.” It also required West to certify “that the information provided in [his] Claim Form [was] true and accurate to the best of [his] knowledge.” Based on that attestation, the Claims Administrator used West’s tax forms to calculate his “lost earnings.” The Claims Administrator determined West was entitled to $1,412,673.06. BP contested that determination

because West “lost” nothing—he received all the money promised by the front-loaded terms of his pre-spill contract. The district court denied discretionary review. The appellate court reversed the district court’s judgment, noting that West did not suffer actual and unexpected “losses” or damages. In 2010, he earned exactly what he was entitled to receive under his contract. The fact that West received less money in 2010 than in 2009 did not mean he “lost” anything or was “damaged” in any way. It meant only that he agreed to a frontloaded contract—many years before the Deepwater Horizon catastrophe. The court observed that the Deepwater Horizon Settlement Agreement is a contract and that its proper interpretation “is a question of law.” And making “an error of law constitutes an abuse of discretion.” Accordingly, when a district court is “presented with purely legal questions of contract interpretation” and the court’s review is de novo, remand is unnecessary. In reversing, the Fifth Circuit explained that the decision to give money to West “actually contradicted or misapplied the Settlement Agreement.” And the reviewing court’s holding to that effect answers a “purely legal question[] of contract interpretation.” Interestingly, the concurring and dissenting opinion provides a cogent analysis of the difference between rendering and remanding, noting that the court’s “usual course” is to “remand to the district court to resolve outstanding factual issues and failing to do so on this procedural historyLAWYER is particularly AUSTIN AL AL inappropriate.”

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MAY 2019 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Rejected: Supreme Court Smacks Down Texas Court of Criminal Appeals BY DAN DWORIN

uch media coverage of the U.S. Supreme Court focuses on the well-documented ideological differences between the conservative and liberal justices. But when six of the nine justices join in an opinion, especially to overrule a death penalty case, one takes notice. And when the decision is as close to a judicial smack-down of Texas’s highest criminal court as one gets—in the polite, refined language of appellate judges—and one is a criminal defense attorney accustomed to the “justice” shown to defendants by the Texas Court of Criminal Appeals (CCA), one really perks up.

In a per curiam (not written by a particular justice, but by the court as a whole) opinion, the high court blasted the Texas CCA for ignoring precedent—and the Supremes’ own direct instructions on remand—in failing to make adequate fact-findings in a case involving the state’s attempt to execute an intellectually disabled death row inmate.1 The defendant in Moore argued that the Eighth Amendment, as refined by the Supreme Court in Atkins v. Virginia,2 prohibited his execution due to his documented intellectual disability. In Atkins, the Supremes held that it is unconstitutional to put an intellectually disabled person to death, due to the fact that the defendant

may not even have a rational understanding of the reason for his execution or even his own crime of conviction.3 A state district judge, on a post-conviction writ of habeas corpus, had found, based on the evidence presented, that Moore was intellectually disabled and therefore could not be executed.4 The CCA later reversed that finding, and on his federal writ the Supreme Court told the Texas court to look at the case again, and to correctly apply the standards given to them in Atkins. Instead of doing so, the CCA came back with another opinion affirming the death sentence, using analysis of laypersons’ “stereotypes” of intellectual disability that the Supreme Court had declared out-of-bounds nearly 20 years ago, in favor of a test based on modern psychological understanding.5 In sending the case down again, the Court noted that, in its second opinion, the CCA “…repeat(ed) the analysis we previously found wanting, and those same parts (of the analysis) are critical to its ultimate conclusion.”6 The Court continued, “[t]o be sure, the court of appeals opinion is not identical to the opinion we considered (previously). There are sentences here and there suggesting other modes of analysis consistent with what we said. But there are also sentences here and there suggesting reliance on ‘…lay stereotypes of the intellectually disabled.’”7 Justice Alito, joined by Justices Gorsuch and Thomas, dissented on the basis that the majority was engaging in fact-finding (in reality, the majority opinion simply relied on the facts in the record, but found that

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. The views and opinions expressed are those of the author and do not necessarily reflect the views or opinions of the Austin Bar Association, its board of directors, or its members.

the CCA had applied the wrong standard—twice). The most conservative justices rarely vote to overturn a death sentence, and this case was no exception. Chief Justice Roberts wrote a short concurring opinion. It remains to be seen whether the CCA is able to produce—on its third try—an opinion that correctly analyzes the law and facts under the standard set in Atkins, particularly at a time when many states are declaring moratoriums on executions and public support ofAUSTIN capital LAWYER punAL AL ishment seems to be waning. Footnotes 1. Moore v. Texas, 586 U.S. ____ (2019) (opinion rendered Feb. 19, 2019). 2. 536 U.S. 304 (2002). 3. Id. 4. Ex Parte Moore I, 470 S.W.3d 486 (Tex.Crim.App 2015). 5. Ex Parte Moore II, 548 S.W.3d at 555. (Tex. Crim. App. 2018). 6. Moore, 586 U.S. ______ (2019). 7. Id.

MAY 2019 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

I Want a Refund! Recovery of Attorney’s Fees and Costs BY ETHAN RANIS attorney’s fees in suits for breach of contract against corporations and individuals, it does not extend to partnerships or LLCs. Amendments to the statute that would legislatively veto these holdings have been considered by the Texas Legislature, but none has passed to date.

Making the claim

Ethan Ranis is an associate at McGinnis Lochridge.

t the beginning of most litigation, recovery of attorney’s fees and costs may seem like an afterthought—either they are available or they’re not—and if they are, go for them. However, there are a number of questions and considerations that should be kept in mind when pleading claims involving attorney’s fees, and when attempting to recover such fees at the end of litigation.

Are fees or costs available? First, the default rule in both Texas and several other jurisdictions is that attorney’s fees and costs are not recoverable, unless explicitly provided for by either contract or a statute. This is known as the “American Rule.” A number of Texas statutes provide for attorney’s fees, including the Texas Theft Liability Act (“TTLA”), Deceptive Trade Practices Act (“DTPA”), and Texas Civil Practice & Remedies Code section 38.001. However, these statutes have quirks in how they have been interpreted. For example, a recent line of cases holds that, while section 38.001 applies to allow 26

AUSTINLAWYER | MAY 2019

Any party seeking attorney’s fees must give fair notice of the claim by pleading it. The basis for the attorney’s fee claim needs to be specifically pleaded. One appellate decision found that because the plaintiff did not plead for attorney’s fees under a contract but rather solely under a statute, fees were only available under the terms of the statute, rather than the more expansive terms in the contract. Further, in order to prove up fees, the attorney will need to provide expert testimony on the reasonableness of fees, which typically requires disclosure of the attorney as an expert as well as some of the documents associated with billing (such as the fee contract).

Who gets their fees and costs? Many contracts and statutes award fees and costs to the “prevailing party” in litigation. However, the definition of when a party “prevails” can vary depending on the goals of the litigation. If a plaintiff brings a breach of contract claim for damages and receives a verdict in its favor, but does not receive damages, then it is typically not a prevailing party. However, a plaintiff seeking declaratory or injunctive relief related to a contract could be entitled to fees under that contract even if it does not obtain damages, because there is still a meaningful

change in the legal relationships between the parties. Importantly, in most clauses concerning the “prevailing party,” the defendant may be entitled to recover costs for successfully defending against a claim. Zeroing out a plaintiff on damages or obtaining summary judgment dismissing the case are both considered successful defenses. In some cases, even a nonsuit by the plaintiff makes the defendant a prevailing party,

Several Texas cases have held that “costs” as defined by statute are limited to “court costs,” which are typically limited to fees paid to the court or its officers, such as court reporters or clerks. As a result, “costs” generally does not include items like expert witness fees or even videographers for depositions. Some of the items that would typically be considered “costs,” such as travel expenses, may

Many contracts and statutes award fees and costs to the “prevailing party” in litigation. However, the definition of when a party “prevails” can vary depending on the goals of the litigation. if it is reasonably clear that the plaintiff nonsuited to avoid an adverse judgment. Some of the statutes providing for attorney’s fees, such as the DTPA, may also contain separate clauses allowing a defendant to recover under certain circumstances, such as when a plaintiff has made a claim in bad faith.

actually be properly considered attorney’s fees.

Reasonableness?

Lastly, when proving up attorney’s fees in most circumstances, there is a requirement that the fees were reasonable and necessary. Courts use a set of eight factors known as the Arthur Andersen factors to considMultiple claims er whether fees are reasonable. In a case involving multiple The attorney seeking fees may claims where only some of submit an affidavit setting forth those claims are successful, the an analysis of those factors and fees must be segregated. The how they are satisfied; like any requesting party is only entitled affidavit, this must be supported to the fees associated with the by evidence. claims on which it succeeded, While this article just so unless all of the claims are so scratches the surface of the intertwined that they required complexities that can be associthe same research and factual ated with attorney’s fees claims, inquiry, the requestor must hopefully it shows just how separate out which fees are many legal issues can arise from attributable to the successful a simple remedy. To be on the claim, and which were not. safe side, research any claim for attorney’s fees thoroughly before Fees or costs? filing your first pleading in a AUSTIN LAWYER One other trap for the unwary is AL AL matter. in determining what to claim as an attorney’s fee versus a cost.

AUSTIN YOUNG LAWYERS ASSOCIATION

Lawyers in Fashion AYLA’s 5th Annual Runway for Justice

he Austin Young Lawyers Association held its 5th Annual Runway for Justice fashion show fundraiser on March 27, 2019. More than 175 people, including attorneys and judges, attended the fashion-forward event, with attorneys modeling spring fashions from local boutiques. Brittany Stanford worked with Estilo Boutique, Amberleaf, Z Couture, Criquet, and Theory, selecting outfits to showcase looks that would “pop” on the runway. Proceeds for the event benefit the AYLA Foundation for projects including a Legal Resource Fair with this year’s nonprofit partner, Community First! Village. Thank you to event chairs, Sandy Bayne and Brittany Stanford; and our emcees, Judge Lora Livingston and District Clerk LAWYER Velva Price; and our many AUSTIN AL AL sponsors!

1. Bianca Garcia. 2. Erin Leake. 3. Sandy Bayne. 4. Festive drinks to match the style of the evening. 5. Bianca Garcia 6. Jorge Padilla and Cathy Garza. 7. Adam Aseron. 8. Gavin Villareal. 9. Judge Lora Livingston and The Honorable Velva Price. 10. Nikki Maples 11. Claude Ducloux.

Photos by Alia Michelle Photography.

11 MAY 2019 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Member Spotlight: Adia Mercado AYLA: Tell us about yourself and your law practice. Mercado: I attended UT for my law degree as well as my master’s in Black Studies. I currently work as an assistant attorney general in the Office of the Attorney General’s Transportation Division, practicing predominantly eminent domain law. Through condemnation proceedings filed on behalf of our client, the Texas Department of Transportation (TxDOT), property is acquired to build new roads and expand highways as well as the footprint of public entities, including universities. In my daily practice, I travel throughout Texas to represent TxDOT at special commissioners’ hearings where the value of each parcel is decided. If a party is not satisfied with the fair market value that the special commissioners determine, objections are filed, and the case

moves on to the jury trial phase. I am developing my litigation skills and enjoying the rewarding practice of law as a public servant of the State of Texas. AYLA: What’s been your best AYLA experience? Mercado: In the year I’ve been involved, my best experience was volunteering at the Women’s Resource Fair. I helped take care of attendees’ children. Knowing that I was helping underprivileged women access resources they may not have been able to take advantage of without childcare was personally rewarding. AYLA: What was your childhood dream job? Mercado: When I was in middle school, I wanted to be a Black History professor. This aspiration was about to become a reality when I entered a Black

Studies master’s degree program, in ultimate pursuit of a PhD. I met policy attorneys who helped me realize that a legal career would be the best path. I learned that practical work improving people’s lives would help me find satisfaction in my own life. AYLA: What’s your favorite moment of your career so far? Mercado: My favorite moment of my career so far was second-chairing a trial in Dallas County during my fourth month at the attorney general’s office. After I delivered the opening statement, opposing counsel complimented my performance. I was struck by the generosity of the legal community in Texas: I was given great responsibility as a new attorney and was also congratulated by an opponent on a job well done. We did not win our trial, but the finesse that is required to perform well in this

Fourth Annual Diversity Bar Mixer a Success

n February 21, attorneys from various local diversity bar associations converged at Sellers Underground for the fourth annual Diversity Bar Mixer. Attorneys from the Austin Young Lawyers Association, the Austin LGBT Bar Association (now the LGBT Law Section of the Austin Bar), the Austin Asian American Bar Association, the Austin Black Lawyers Association, the Hispanic Bar Association of Austin, the South Asian Bar Association of Austin, and the Travis County Women Lawyers’ Association enjoyed fellowship, food, and drinks. Attendees also had the chance to learn about philanthropic opportuni-

AUSTINLAWYER | MAY 2019

AYLA members and friends enjoying the Diversity Bar Mixer.

ties with partner organization, RAICES. Thank you to all of our generousAUSTIN sponsorsLAWYER for makAL AL ing this event a success!

Mercado

craft has me hooked. AYLA: What’s your best piece of advice for fellow young attorneys? Mercado: Do your best in everything that you do. No matter what people think about you, the excellence of your work will speak for itself and you will be able to face any challenge that AUSTIN LAWYER L AL rises to meetAyou.

2019 Pie Fest to Be First Major Event Held at Hilgers House

he 2019 Leadership Academy class is holding their class fundraiser benefitting the Austin Bar Foundation’s “Our Home on Judges Hill” capital campaign. The event will be the first of many to be held at the new home of the Austin Bar at 712 W. 16th Street, and will take place on Saturday, June 1, 2019 from 10 a.m. to 2 p.m. The family-friendly event will feature competitive Frito pie and dessert pie contests with judging by members of the judiciary, along with a chance to “pie” some of your favorite local legal personalities. Attend the event, show off your pie baking skills by entering a pie in the contest, or form a team to participate in the Frito-Pie Chili CookOff. Sponsorships are also available. Visit austinbar.org for tickets, sponsorships, AUSTIN LAWYER and AL AL more information.

PARTICIPATING JUDGES U.S. District Court Judge Robert Pitman U.S. District Court Magistrate Judge Mark Lane Texas Supreme Court Justice Debra Lehrmann Texas Supreme Court Justice Eva Guzman Texas Supreme Court Justice Jeff Boyd Texas Supreme Court Justice Brett Busby Third Court of Appeals Justice Chari Kelly 331st Criminal District Court Judge Chantal Eldridge 299th Criminal District Court Judge Karen Sage 353rd Civil District Court Judge Tim Sulak 250th Civil District Court Judge Karin Crump 200th Civil District Court Judge Dustin Howell 459th Civil District Court Judge Maya Guerra Gamble 261st Civil District Judge Lora J. Livingston Travis County Associate Judge John Hathaway Travis County Civil Court Associate Judge Andrew Hathcock Travis County Magistrate Judge Leon Grizzard Travis County Civil Court Associate Judge Aurora Martinez Jones Travis County Court at Law #8 Judge Carlos Barrera Travis County Court at Law #6 Judge Brandy Borich Mueller Travis County Juvenile Court Associate Judge Ami Larson Travis County Juvenile Court Associate Judge Bradley Temple Travis County Juvenile Court Associate Judge Texanna Davis

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MAY 2019 | AUSTINLAWYER

PRACTICE POINTERS

The Best Offense Is a Good Defense Successfully Defending Depositions BY STEFANIE SCOTT SHAH there is any pattern to his/her questioning. If there is, use those patterns/questions as a roadmap for your deposition prep. FOCUS ON THE TASK AT HAND

Stefanie Scott Shah is the founding member of Scott Shah Law. Her practice includes complex commercial, patent, and employment litigation. Additionally, Stefanie acts as outside general counsel for growing businesses, handling all their legal needs. She can be contacted at stefanie@scottshah.com.

here is a misconception that defending a deposition is easier than conducting one. If your goal is to leave your case no worse off than it was before the deposition, that might be true. But if you want to gain a tactical advantage during the deposition, playing defense is just as challenging as playing offense. Here are a few tips that will make defending depositions harder, but will ultimately help you, your cases, and your clients.

WATCH THE GAME TAPE

Successfully defending your client begins before you step into the deposition. I will spare you the standard tips for deposition preparation and will, instead, focus on one distinct suggestion: If you have any deposition experience with the deposing attorney, review prior deposition transcripts and determine if 30

AUSTINLAWYER | MAY 2019

I once had a client tell me he was thankful I was defending his company’s deposition. He told me that he had previously and regularly had lengthy email conversations with another company attorney while said attorney was defending the depositions of other clients. Understandably, although this particular client appreciated the quick response from his counsel during someone else’s deposition, he did not want his corporate representative to be defended by an attorney who was more concerned about responding to (another client’s) email than protecting his own company’s interests. The truth is, when you are not the one asking (or answering) the questions, it is easy to lose focus, respond to email, think about other cases, etc. For this reason, the person taking the deposition has a strategic advantage over the person representing the deponent. The former can successfully bore the latter into losing concentration and missing opportunities to protect his/her client. In contrast, the strategic advantage of the attorney defending the deposition is that he/she has the ability to actually listen. If you closely pay attention while defending depositions, you will have the upper hand. GO TO BAT FOR YOUR CLIENT

Just like it is easy to lose focus while defending a deposition, it is also easy to overlook and/or avoid disagreements with the de-

posing attorney. You are sitting in a quiet conference room with your client, opposing counsel, and a court reporter. There is no judge present to rule on disputes. The atmosphere alone is enough to discourage confrontation. But it should not be. Although you are outside a courtroom, you are still representing your client in a hard-fought litigation. If your client’s rights are being trampled on, do not let the setting prevent you from speaking up.

Former District Judge

Object. Instruct your client not to answer a prohibited question. If the dispute rises to the level of judicial intervention, call the discovery hotline or the judge’s chambers (check local rules) for an immediate resolution/ruling. Of course, some battles are not

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worth fighting. Others are. You’ll have a few minutes—likely on the record—to decide. FAMILIARIZE YOURSELF WITH ATTORNEY-CLIENT PRIVILEGE

Q: What did you and your attorney discuss during break? A: He told me he thought you were doing a terrible job in this deposition. When I was a young attorney, I remember an experienced lawyer recanting a secondhand war story and joking that the above exchange was the only appropriate conversation to be had with a client during deposition breaks. However, although clever, this advice

is not always applicable. In some jurisdictions, any private conversation an attorney has with his/ her client on break during a deposition is protected by attorney-client privilege; as such, the deposing party is not entitled to the contents of these conversations when the deposition resumes. In others, these conversations are not protected by the privilege, and the deponent must answer questions about said conversations. In jurisdiction where there is such an attorney-client privilege, it is to your advantage to use it. This privilege allows you to continue prepping and coaching your

client throughout the deposition. Of course, in jurisdictions in which there is no such privilege, you should avoid discussing the deposition/lawsuit with your client during breaks. Understand the rules/laws of the relevant jurisdiction before the deposition. If the law is clear that an attorney-client privilege attaches to conversations made during breaks, bring case citations with you—just in case you need to convince opposing counsel and/or seek judicial intervention. When you realize defending a deposition can be as challenging as conducting playAUSTINone, LAWYER AL AL ing defense becomes a bit more exciting!

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Austin Lawyer, May 2019

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The Lawyer as Citizen in a Democracy under Stress

2019 Pie Fest to Be First Major Event Held at Hilgers House

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