Austin Lawyer, November 2018 by Austin Bar Association

austinbar.org NOVEMBER 2018 | VOLUME 27, NUMBER 9

Join Us in Honoring Retiring Judge Orlinda Naranjo of the 419th Travis County District Court

t the end of 2018, after 24 years on the bench, Judge Orlinda Naranjo is retiring. Please join the Austin Bar Association in thanking her for her long and esteemed career of service by attending a reception in her honor on Thursday, November 15, from 5:30 – 7:30 p.m. at the UT Club. Food and drinks will be served and parking is included. The event is a fundraiser supporting two nonprofits that are near and dear to Judge Naranjo’s heart: Volunteer Legal Services and the Austin Bar Foundation. VLS will establish a fellowship in Judge Naranjo’s name. The Judge and her husband, Jim Ewbank, will match the first $10,000 raised. Show your thanks to her, and your support for these organizations, with a sponsorships at one of the following levels: • $5,000 (Level 1)—16 Tickets • $2,500 (Level 2)—8 Tickets • $1,000 (Level 3)—6 Tickets • $500 (Level 4)—4 Tickets • $250 (Level 5)—2 Tickets Register at austinbar.org, or send a check to DeLaine Ward at 816 Congress Ave., Suite 700, Austin, TX 78701. Make

The event is a fundraiser supporting two nonprofits that are near and dear to Judge Naranjo’s heart: Volunteer Legal Services and the Austin Bar Foundation. checks payable to the Austin Bar Foundation/Judge Naranjo event. Please include your firm logo or name as you want it to appear on event materials. Individual tickets may also be purchased for $50. Judge Naranjo became judge of Travis County Court at Law No. 2 in 1996, before being elected to the 419th District Court in 2006. Her vast professional and community involvement includes being appointed by the Texas Supreme Court to serve on the State Commission on Judicial Conduct and the Texas Judicial Council, for which she has served on numerous committees including the Texas Indigent Defense Commission and as chair of the Texas Juvenile Justice Committee. She has served in many executive board positions and was elected Vice-President of Districts for the National Association of Women Judges (NAWJ). In October 2018, she chaired the NAWJ

NOV 15 JUDGE NARANJO’S RETIREMENT PARTY UT CLUB, 5:30 – 7:30 p.m.

Judge Naranjo

Sponsorships & Tickets: austinbar.org

2018 Conference in San Antonio. Judge Naranjo’s career has been dedicated to children. She has coordinated 11 annual NAWJ Color of Justice programs in Texas and Oklahoma to educate high-school students about careers in the law. Since 2002, she implemented, planned, and presided over 16 annual Dating Violence or DUI Mock Trials for over 600 middle school students in nine Travis County schools. This program is now being replicated in Hays County. In 2013, when serving as president of the Robert W. Calvert Chapter of the American Inns of Court, she developed the award-winning Mentoring A Student (MAS) program for students at Travis High School which includes Inn members presenting different monthly programs to encourage students to pursue careers in the justice system. She is co-chair of the annual

National “Do The Write Thing” anti-violence program which provides 7th and 8th grade students the opportunity to examine the effects of violence in their lives by writing essays. As a former board member of Con Mi Madre, she worked to increase the representation of Hispanic girls in post-secondary education by providing comprehensive educational and social services to 6th through 12th grade Hispanic girls and their mothers. She has received many awards including the President’s Award given in September 2018 by the Hispanic Bar Association of Austin. In 2016, she received the Austin Bar Foundation’s David H. Walter Community Excellence Award. Other awards include being named a Fab Five Honoree by the Seedling Foundation, Outstanding Latina Leader Award from Avance, Women of Distinction Award from the Girl Scout Councils of Texas, and the CoraAUSTIN LAWYER AL AL zon Award from Con Mi Madre.

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CONTENTS

AUSTINLAWYER NOVEMBER 2018 | VOLUME 27, NUMBER 9 AL A L INSIDE FEATURED ARTICLES 1

DEPARTMENTS

Join Us in Honoring Retiring Judge Orlinda Naranjo of the 419th Travis County District Court

Join the Community Engagement Committee in Honoring Our Veterans

Participate in the Veterans Day Parade

13 16

Bump the Vote

Join the Austin Bar’s Team for Light the Night on Nov. 10

Benefits The Leukemia & Lymphoma Society

21 Apply Now for 2019 AYLA/Austin Bar Leadership Academy

22 24

Briefs Pro Bono Spotlight Opening Statement Third Court of Appeals Civil Update Third Court of Appeals Criminal Update Federal Criminal Court News Federal Civil Court Update AYLA Practice Pointers

CONNECTIONS ONLINE austinbar.org EMAIL nancy@austinbar.org MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar

ONLINE

WATCH vimeo.com/austinbar

austinbar.org

NEWS & ANNOUNCEMENTS

EVENTS & MORE

Evaluators Needed for YMCA Youth and Government’s Austin District Conference – Nov. 10, 2018

NOV. 1

Austin Lawyer Seeks Volunteer Editor-in-Chief

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Gardner Betts Juvenile Justice Center 2515 S. Congress Ave. 9:30 a.m. – 1:30 p.m. Press conference – 11 a.m.

STREAM @AustinBarAssociation FOLLOW instagram.com/theaustinbar TEXT austinbar to 313131 for up-to-date news + info Message & data rates may apply.

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Join the Community Engagement Committee in Honoring Our Veterans Participate in the Veterans Day Parade

ll Austin Bar members, including those who are veterans, those who volunteer at the Legal Advice Clinic for Veterans, and those who want to show their appreciation for veterans, are invited to join the Austin Bar’s Community Engagement Committee as they march in the Veterans Day Parade on Sunday, Nov. 11, 2018. Participants are asked to wear business casual attire in red, white, or blue. Banners and signs will be provided to show the community that Austin lawyers care and are engaged in making our city and our world a better place. The 11-block parade route begins at the Congress Ave. Ann Rich-

AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION

NOV 11

Adam Schramek........................ President D. Todd Smith............................. President-Elect Kennon Wooten....................... Secretary David Courreges...................... Treasurer Amy Welborn �� Immediate Past President

VETERANS DAY PARADE

AUSTIN YOUNG LAWYERS ASSOCIATION

AUSTIN PARADE ROUTE 8 a.m. Meet-up / 9 a.m Parade Questions: Email Blair Dancy,

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

bdancy@cstrial.com

Austin Lawyer

ards Bridge and ends at the state capital. Contact Blair Dancy at bdancy@cstrial.com if you are interested in participating. Look for announcements in Bar CodeAUSTIN in early November LAWYER AL AL for more information and meet-up details.

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 of the 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 Federal Court and 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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Bump the Vote BY BLAIR DANCY, CHAIR OF THE AUSTIN BAR’S COMMUNITY ENGAGEMENT COMMITTEE

ith the general election approaching on Nov. 6, we often hear about efforts to get out the vote. We may also hear criticism that getting more people to vote indiscriminately leads to uninformed voters, which, politics aside, can lead to lesser qualified candidates winning. What’s a lawyer to do? Australia has had just this debate for some time now. I was surprised to learn that Australia has mandated voting since 1924. (Scofflaws are subject to a fine of about $15 U.S.) In the Aussie’s 2016 federal election, 87 percent of the voting-age population participated—and that was their lowest level of participation since voting became compulsory. Turnout has been as high as 96 percent in some elections. Their debate of whether to continue the system is summed up in two quotes from a parliamentary report after their 2004 elections: “Compulsory voting ... the bigger the vote, the more representative the government, the healthier the democracy.” “Voluntary system ... all of those who voted, did so because they wanted to vote and had given consideration to their choices. Quality is always better

than quantity.” According to a University of Sydney lecturer, Australia’s compulsory system has been credited for electing relatively stable, moderate leaders for most of its history, for generating more interest in politics, and for focusing politicians more on policy rather than energizing their bases. So let’s look at our own backyard. Some complain Austin is too liberal (e.g., mandatory paid sick leave) or that the state is too conservative (e.g., the “bathroom bill” which is coming up again this Legislative session). Our politicians and politics have landed in the national spotlight frequently, and both sides focus on energizing their base. If you scoff at the idea that a compulsory system leads to more moderate leaders, consider this: Taking the average from the 2006, 2010, and 2014 midterm elections, Texas tied with the District of Colombia for lowest turnout in the nation: Only about a third of our eligible population voted. One reason has to do with Texas’s relatively young population. Our younger population votes less—just 27.3 percent of 18- to 24-year-olds turned out in the 2016 general election, compared to 65 percent of those 65 and older.

As lawyers, we can encourage participation. Talk candidly about who’s running—particularly our judicial candidates—and why they may (or may not) be the better candidate for the office. Invite friends and neighbors to talk with you about the races, to the degree they may not know much about them. Ask younger adults if they’re voting, and if they say no, ask them why not. As lawyers, we frequently have insight into races that the general population may simply not have. We may not surge to the Aussie record 96 percent rate (or even their worst: 87 percent), but we AUSTIN LAWYER can bump it up A a Lbit. AL

Sources: www.huffingtonpost.com/entry/ australia-compulsory-voting_ us_5a9deac4e4b0479c02563d9a\ www.nytimes.com/ roomfordebate/2011/11/07/shouldvoting-in-the-us-be-mandatory-14/ what-weve-seen-in-australia-withmandatory-voting www.abc.net.au/news/2016-06-07/ why-do-we-have-compulsoryvoting/7484390 www.texastribune.org/2018/02/23/ texas-voter-turnout-electorateexplainer/ www.chron.com/news/houston-texas/ texas/article/Voter-turnout-in-Texasis-dead-last-in-America-13241845. php#photo-14360551 www.washingtonpost.com/ graphics/2018/politics/voteraccess/?noredirect=on&utm_term=. b9bcd9698ee1 www.washingtonpost.com/ politics/2018/09/26/where-americansvote-where-they-dont/?utm_term=. c2514f033cd9

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Join the Austin Bar’s Team for Light the Night on Nov. 10 Benefits The Leukemia & Lymphoma Society

he Austin Bar’s Health Law Section, in conjunction with the Community Engagement Committee, is raising money and participating in The Leukemia & Lymphoma Society’s Light the Night Walk on Saturday Nov. 10, 2018 at Circuit of the Americas. It is a family-friendly event and all are welcome to join team captain Sarah Thompson Schick and Health Law Section chair Corinne Smith raise funds in support of The Leukemia & Lymphoma Society (LLS). To donate, go to https://pages. lightthenight.org/sctx/AustinL18/AustinBarAssociation HealthLawSection. Click the “walk with us” tab at the top of the page to register for the walk. The LLS’s Light The Night walk funds treatments that are saving the lives of patients today. LLS is making cures happen by providing patient support services, advocating for lifesaving treatments, and pioneering the most promising cancer research anywhere. This is all happening now. Not someday, but today. Each year, friends, families, and co-workers form teams to raise money in support of their mission: To cure leukemia, lymphoma, Hodgkin’s disease and myelo-

NOV 10 LIGHT THE NIGHT WALK CIRCUIT OF THE AMERICAS Reg. 5 p.m. / Walk 7 - 8:15 p.m. Questions: Sarah.Thompson Schick@dlapiper.com

ma, and improve the quality of life of patients and their families. LLS exists to find cures and ensure access to treatments for blood-cancer patients. They are the voice for all blood-cancer patients and they work to ensure access to treatments for all blood-cancer patients. This year, teams from all over the country will Light The Night in their communities. Join other Austin Bar members for the walk on Nov. 10 as they gather together to celebrate, honor, and remember those touched by cancer. Light the Night Event Details: • Registration Time: 5 p.m. • Walk Time: 7 – 8:15 p.m. • Parking: Main parking lot in front of COTA • Walk distance: 1 mile • Dogs are not allowed. • Wheelchairs, strollers, scooters are allowed. • Other activities include a kids area.

• Food is not available for purQuestions? Contact Sarah chase beyond what is available Thompson Schick at Sarah. for Champions for Cures. AUSTINThompsonSchick@dlapiper. LAWYER A L AL com.

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BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Phil Baker Stephen Barron TOP: Ajmera, Chester, Clarke, Hightower, Judge Martinez-Jones, Riegel LEFT: Toth, White

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AWARDS

McGinnis Lochridge is pleased to announce 17 of the firm’s attorneys were named 2018 Texas Super Lawyers and 2018 Rising Stars. They include Austin Bar members Ray Chester, Tim George, Clarke Heidrick, and Raymond White named as Super Lawyers; and Carl Galant, Michael Kabat, and Jordan Mullins, named as Rising Stars. Congratulations to Austin Bar members Sujata Ajmera of Strasburger & Price, Travis County Associate Judge Aurora Martinez-Jones, and Daniel Riegel of Richards Rodriquez & Skeith for being selected to participate in the 2018 Leadership Austin Essentials Class. The Honorable Lee Yeakel Intellectual Property American Inn of Court received the

national Outstanding Program Award for its 2017-2018 program entitled Trollklahoma—A Musical Adventure through the Fast Changing Landscape of Patent Infringement Venue Law. The program chair was Nick Schuneman and the team members were Chad Anson, Dave Bahler, Joel Boehm, Jason Boulette, Katharine Lee Carmona, Michele Kim Connors, Anuj Dharia, Sarah Holland, Kat Li, Leanne Loper, Lisa Newman, Elizabeth Collum Ozmun, Hon. Robert L. Pitman, Kenneth Prol, Bill G. Schuurman, Jerry F. Suva, II, David B. Weaver, and Sherri Wilson.

ciation as the assistant general counsel. Hightower will provide legislative and legal services for rural water systems across the state of Texas. MOVING ON UP

Michael C. Toth, Austin-based senior counsel in Dykema’s commercial litigation practice group, was sworn in as a justice on Texas’s 3rd Court of Appeals on September 26, 2018. Toth was appointed by Texas Governor Greg Abbott to replace Justice Bob Pemberton, who retired after 15 years on the court. Judge Toth’s appointed term will expire on December 31, 2018.

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PRO BONO SPOTLIGHT

A Lifetime Of Service A Veterans Legal Assistance Program Volunteer Profile BY DOUG LAWRENCE, MANAGING ATTORNEY FOR AUSTIN BAR ASSOCIATION’S LEGAL ASSISTANCE PROJECTS

hris Lavorato has spent his career in service to others. First as a member of the United States Army and second, after becoming a lawyer, as an active volunteer and pro bono participant. “I have always enjoyed righting wrongs and helping folks that have been seriously hurt by others’ wrongful conduct,” says Lavorato. A United States Army veteran, Lavorato served as an aviation officer and piloted the UH-60 Blackhawk as his primary aircraft. His service included flight support for governmental counter-drug entities in the Republic of Panama, and serving as a headquarters company commander for an Apache battalion during Operation Desert Thunder in the Persian Gulf. He enjoyed working with the amazingly talented men and women of our armed forces. After graduating from the University of Santa Clara School of Law in 2002, Lavorato went to work at his father’s law firm in Monterey County in California. The first eight years of his practice focused on family law,

Many veterans cannot afford legal services (or consultations)—and the clinic provides those vets with immense support. criminal defense, and smaller personal-injury lawsuits. He then went to work for a major plaintiffs’ law firm in San Francisco to focus on complex civil litigation, aviation accidents, wrongful death, and serious injury. During the early years of his career, Lavorato co-founded Veteran Lawyers of San Mateo County that served veterans in need of legal services. He also served on boards for a local bar association, a trial lawyer association, and a state organization that focused on consumer protection. Now living in Austin, Lavorato works at Howry, Breen and Herman, a civil litigation law firm. His primary focus is on wrongful death, personal injury, product liability, and construction defect cases. “People need help. I believe that most people have times in their lives where they need

Anji Maddox

support, encouragement and yes, lawyers. I believe that we have a very noble profession, similar to healthcare. As stewards of our profession, we have an obligation to give back to our community as much as we can,” said Lavorato. “I volunteer with the Austin Bar Foundation for the legal clinic that is provided to military veterans. The clinic provides a vast array of legal advice and legal services to veterans each month. Many veterans cannot afford legal services (or consultations)—and the clinic provides those vets with immense support,” said Lavorato. He also serves on the board of directors for The Playful Child Foundation, an organization that is dedicated to the advancement of physically and emotionally healthy kids living in Central Texas. Lavorato recently finished a pro bono case for a Vietnam vet-

Lavorato

eran who was injured in an automobile accident. The veteran’s insurance company wouldn’t pay for the medical expenses. With the help of Lavorato, the veteran received full compensation for injuries. “There are people who, for many various reasons, can’t help themselves and need help. I believe that people who have legitimate claims and need legal services should get those services—period,” says Lovorato. “And—on a more selfish note— the gratification one receives from helping another in need is AUSTIN LAWYER AL AL priceless.”

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The New Greenbook Texas Rules of Form, 14th edition (2018) BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

new edition of Texas Rules of Form—The Greenbook—just came out in August. This 14th edition has some changes you’ll want to know about if you cite Texas authorities. I summarize the key changes below. But first, why change The Greenbook? The Texas Law Review editors in charge of the 14th edition were determined to improve The Greenbook and respond to concerns raised by practicing lawyers, law librarians, and legal educators. So they created an extensive online survey that asked about nearly every citation convention in the manual; the survey also solicited suggestions for improvement. They received hundreds of responses and ultimately made several changes intended to improve the manual. In the not-too-distant future (I’m told) the Greenbook editors will post on TexasLawReview.org a report that digests the survey results and explains how users’ feedback influenced the editorial decisions. Now, the main changes.

rules, too. The three most-important changes are summarized here.

LAYOUT UPGRADE

STATUTORY PUBLISHER AND YEAR DISAPPEAR

The first thing you’ll notice is the look of the text, which I consider a big improvement. The 14th edition uses a contrasting font for examples and major headings and places rule numbers in the left margin. These design elements make the text easier to read and easier to skim. Also, the pages are white instead of the traditional off-white or manila. And the text is smaller than before; it’s readable but is perhaps a half point smaller than ideal. Beyond the look, the 14th edition changes some citation

TEX. CIV. APP. GOES AWAY

For all intermediate appellate court cases, the correct abbreviation for the court is now Tex. App. because the 14th edition has abandoned Tex. Civ. App. See Rule 4.2. In case you’d forgotten: before September 1, 1981, Texas’s intermediate appellate courts had no criminal jurisdiction and heard only civil cases. They were known as courts of civil appeals and were cited with the following abbreviation: Tex. Civ. App. After these courts gained criminal jurisdiction, they became the courts of appeals, and in a full-citation are cited like this: Tex. App. The 14th edition has done away with this distinction, so all intermediate courts of appeals are cited as Tex. App. Old form: Key v. Plant, 500 S.W.2d 233 (Tex. Civ. App.— Austin 1973, writ dism’d) New form: Key v. Plant, 500 S.W.2d 233 (Tex. App.—Austin 1973, writ dism’d)

When citing a Texas statute in full form, The Bluebook and previous Greenbook editions require you to include a parenthetical containing the publisher (West) and the date (the copyright year of the print volume in which the statute appears). The 14th edition drops the publisher-date parenthetical for statutes currently in force. See Rules 10.1 and 10.2. This change was probably motivated in part by feedback The Greenbook’s editors received on their survey. But I’ll bet it

was equally motivated by their own headaches in hunting down the Vernon’s print volume to find the right date. This change is eminently wise and is one my legal-writing colleagues and I have been hoping would come to pass. Here’s what it looks like: Old form: Tex. Tax Code Ann. § 26.06(a) (West 2014) New form: Tex. Tax Code Ann. § 26.06(a) Now, if we could just get The Bluebook editors to be similarly sensible. NOTING ADOPTED OPINIONS OF THE COMMISSION OF APPEALS

were originally Texas Supreme Court opinions, like this: Old form: Cheney v. Coffey, 114 S.W.2d 533 (Tex. 1938) But the 14th edition in Rule 5.2.2 now requires that the adoption be indicated in the court-date parenthetical, like this: New form: Cheney v. Coffey, 114 S.W.2d 533 (Tex. [Comm’n Op.] 1938) This is another sensible change. Ultimately, I find I like the new Greenbook, and I approve of the editors’ AUSTIN changes.LAWYER Here’s L AL hoping you’ll approve,Atoo.

Fully adopted opinions of the Texas Commission of Appeals were formerly cited as if they NOVEMBER 2018 | AUSTINLAWYER

THIRD COURT OF APPEALS CIVIL UPDATE

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 a partner at Ikard Ratliff P.C.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during September 2018. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of October 2, 2018.

TRIAL PROCEDURE: Court affirms vexatious litigant finding. Bierwirth v. Rio Rancho Properties, LLC, No. 03-17-00733-CV (Tex. App.—Austin Sept. 25, 2018, no pet. h.) (mem. op.). Rio Rancho purchased property

AUSTINLAWYER | NOVEMBER 2018

at a foreclosure sale that was previously owned by Martinez. Bierwirth sued Rio Rancho, contending Martinez had redeemed the property and assigned it to him. The trial court granted Rio Ranch’s request to declare Bierwirth a vexatious litigant. The court of appeals addressed whether Bierwirth had a reasonable probability of prevailing. According to the court, to redeem property purchased at a sale foreclosing an HOA’s assessment lien, the owner must pay all amounts due at the time of the sale. Because Martinez failed to pay his outstanding balance, he did not redeem. Thus, Martinez had no ownership interest in the property to assign to Bierwirth. Accordingly, there was no reasonable probability that Bierwirth would prevail. The court affirmed. ADMINISTRATIVE LAW: Court construes Comptroller’s comment as agency rule. Badger Tavern, L.P. v. Hegar, No. 03-18-00291-CV (Tex. App.—Austin Sept. 11, 2018, no pet. h.) (mem. op.). Comptroller published a comment to a rule amendment, indicating it would apply the amendment to all pending and future cases. Badger sued, challenging the rule and comment as invalid. The trial court granted Comptroller’s plea to the jurisdiction. The court of appeals addressed whether the retroactivity

comment constituted a rule subject to challenge under APA § 2001.038. According to the court, Comptroller’s pronouncement appeared in the same publication as the amended rule and clarified an ambiguity in the rule. Thus, the court concluded the pronouncement was a rule subject to challenge. The court further concluded that Badger alleged a proper challenge to the validity of the retroactive pronouncement. The court reversed and remanded. FAMILY LAW: Court affirms modification order based on changed circumstances. Ceniseros v. Rychlik, No. 03-1700532-CV (Tex. App.—Austin Sept. 7, 2018, no pet. h.) (mem. op.). The trial court granted mother’s request to modify the parties’ divorce decree and gave her the right to determine the primary residency of children. The court of appeals observed that material and substantial changes in circumstances to support modification include: 1) marriage of one of the parties; 2) poisoning of a child’s mind by one party; 3) changes in home surroundings; 4) mistreatment of a child; and 5) a parent becoming an improper person to exercise custody. Here, mother’s remarriage, successful completion of probation, and enrolling in college classes demonstrated changed circumstances. The evidence further showed the

modification was in the children’s best interest. Father had other children and a friend living in his home, worked out of town, and had to rely on others to assist with the children’s care. The court affirmed. ADMINISTRATIVE LAW: Court upholds Department finding of neglect by caseworker. Texas Dep’t of Fam. & Prot. Servs. v. C.A., No. 03-18-00034CV (Tex. App.—Austin Sept. 19, 2018, no pet. h.) (mem. op.). C.A. worked as a caregiver at a YMCA childcare center. While transporting children from a park to the YMCA, a child was left behind for several minutes. The child was found by a stranger, taken to a nearby school, and safely retrieved by C.A. After a hearing, Department determined C.A. committed neglect and placed her name on a central registry for child abuse and neglect. A SOAH ALJ upheld the decision. The district court reversed the ALJ’s order. The court of appeals concluded that substantial evidence supported the ALJ’s findings. As the caregiver in charge of supervising the children, C.A. breached her duty by leaving the child alone at a park and in failing to conduct a pre-departure count of the children. The court reversed AUSTIN LAWYER AL AL and rendered.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

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

The cases summarized are from April 2018 and subsequent histories are current as of October 1, 2018.

TRANSFERRING CASES: Transfer of criminal case from one district court to another was not illegal or unconstitutional. Diaz v. State, No. 03-17-00456CR (Tex. App.—Austin Apr. 24, 2018, pet. ref’d) (mem. op., not designated for publication). Appellant pleaded guilty to the offense of methamphetamine possession with intent to deliver. While appellant’s case was pending, it was transferred from one district court in Bell County to another. Appellant objected to the transfer, claiming that because there was no written transfer order, the transfer was illegal and violated her due-process rights. The trial court overruled the objection. On appeal, appellant claimed that the transfer violated (1) article 4.16 of the Texas Code of Criminal Procedure, which provides that “[w]hen two or more courts have concurrent jurisdiction of any criminal offense, the court in which the indictment or a complaint shall first be filed shall retain jurisdiction”; and (2) Bell 18

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County Local Rule 3.2, which provides that “[t]he transfer of cases between district courts of Bell County may be done by written order upon consent of the judges of those courts participating in the transfer.” The appellate court rejected both contentions, holding that any violation of Article 4.16 would be a procedural error that did not “render the proceedings in the second court void” and that Rule 3.2 was permissive rather than mandatory. The appellate court also rejected appellant’s contention that the district court had unlawfully delegated its “judicial power” to the district attorney’s office by allowing the district attorney’s office to initiate the transfer. SPOILATION INSTRUCTION: Appellant was not entitled to jury instruction that missing video evidence would have been unfavorable to the State. Strutz v. State, No. 03-1600666-CR (Tex. App.—Austin Apr. 25, 2018, no pet.) (mem. op., not designated for publication). Appellant was convicted of the offense of evading arrest. At trial, officers provided a detailed description of their pursuit of appellant, which had been recorded by an officer’s patrol-car dash camera. However, no video of the police pursuit was available for the jury. According to the officers, “the missing video had apparently been purged earlier than the planned retention time due to a storage capacity shortage.” During the charge conference, appellant requested an instruction that the police had a duty to retain the video, that the police acknowledged the existence of the video but had destroyed it, and that the jury “may consider that this evidence would have been unfavorable to the State. . . on the issue of whether [appellant] committed the alleged offense.” The trial court denied the request. The appellate court

affirmed, rejecting appellant’s contention that a showing of negligence was sufficient for a spoliation instruction. According to the court, “for appellant to be entitled to his requested spoliation instruction premised on a due process or due course of law violation, the record had to support a finding that the State acted in bad faith in failing to preserve the video recording of the pursuit.” The court concluded that the record did not support such a finding. MISTAKE OF FACT AND LAW: Appellant was not entitled to jury instructions on mistake of fact and law. Hoopes v. State, No. 03-1600258-CR (Tex. App.—Austin Apr. 27, 2018, pet. ref’d). Appellant was charged with violating a protective order. Appellant had been convicted previously of violating this order, but his conviction had been reversed on

appeal. Appellant’s defense at trial for the current violation was that he had mistakenly believed that the opinion reversing his prior conviction had rendered the protective order invalid, and he requested jury instructions on the defenses of mistake of fact and law. The trial court denied the requests, and the appellate court affirmed. The court explained that a mistake-of-fact defense “inferentially rebuts the mens-rea element of the State’s case” and that “Hoopes’s asserted defense . . . would not, even if credited factually, tend to rebut” the evidence demonstrating that appellant had knowledge of the protective order and intended to violate its terms. The court also concluded that appellant was not entitled to a mistake-of-law defense because the opinion reversing his prior conviction “did not provide a ‘written interpretation of theAUSTIN law’ thatLAWYER Hoopes was AL AL accused of violating.”

SUZANNE COVINGTON Senior District Judge

SPECIAL JUDGE Arbitration Mediation 512-923-8705 suzanne.covington@judgecovington.com www.judgecovington.com

FEDERAL CRIMINAL COURT NEWS

What’s Happening at the Supreme Court? BY DAVID PETERSON

he next Supreme Court term began in October. A full court of nine justices began hearing cases, including a few interesting federal criminal law questions on the calendar. Here are three of the cert-worthy questions on the docket: (1) What is “force”? Stokeling v. United States, 17-5554; (2) What is “burglary”? United States v. Stitt, 15-6158; United States v. Sims, 16-1233; and (3) Does the double jeopardy clause permit two prosecutions for the same crime, if one is in state court and one is in federal court? Gamble v. United States, 17-646. Lest you think that our Supreme Court justices are dunces, I assure you that these are, indeed, complicated ques-

tions. The first two questions are complicated for a simple reason: Congress has written laws requiring judges to enhance federal gun sentences when someone has three prior state convictions for a “serious drug offense” or a “violent felony.” Those, in turn, are defined. “Violent felony” includes any offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Court has previously held that since said felony must be “violent,” the force must be “violent force—that is, force capable of causing physical pain or injury to another person.” Then you have 50 states in which various offenses, such as burglary and robbery, are

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interpreted. For example, the Florida Supreme Court has held that the “degree of force used is immaterial,” and that “any degree of force suffices.” Yet, a federal judge in Florida held that Florida’s robbery statute, possibly involving only an “immaterial” amount of “any” force, is a “violent felony.” As the lawyer for Mr. Stokeling put it, “[t]he Court should not expand the elements clause to rebrand Oliver Twist a ‘violent felon.’” It’s worth remembering that the difference for Mr. Stokeling is a 0-10 year sentence, unenhanced, or a 15-life sentence, if his Florida robbery conviction is a “violent felony.” As to the “separate sovereigns” doctrine, the Supreme Court has long held that someone can be prosecuted in state court for the same crime following a conviction for the same offense in federal court because the two are “separate sovereigns.” A few years ago, a crack appeared in that doctrine when the Supreme Court held, in Puerto Rico v. Sanchez Valle, that Puerto Rico and the United States were not separate sovereigns because the “wellspring of authority” for prosecutions

by the territory of Puerto Rico has its “ultimate source” in the United States Congress, i.e., the same sovereign. Now, the Supreme Court has invited Mr. Gamble to argue that the entire “separate sovereigns” doctrine—a judicial doctrine of construction, with no textual support in the double jeopardy clause itself—should be overruled. As to the facts of the case, Mr. Gamble was arrested with a gun and prosecuted for and convicted of a state felon-in-possession felony in Alabama. He got a year in prison. Mr. Gamble was also prosecuted in federal court for felon in possession of a firearm, the same crime, and received a 46-month sentence. He felt this was unfair and so did his lawyers. For a number of reasons, it’s worth watching how the Court addresses the merits, as AUSTIN well as the head-on question, LAWYER AL AL of stare decisis.

David Peterson is an assistant federal public defender for the Western District of Texas. Any views expressed are his views only and not that of the Office of the Federal Public Defender.

sy@syelenosky.com NOVEMBER 2018 | 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 SUBPOENAS: A civil investigatory demand must comply with the statutory requirement to provide a meaningful “notification of purpose” with some specificity of the nature of conduct under investigation and applicable provision(s) of law. Consumer Financial Protection Bureau v. The Source for Public Data, No. 17-10732 (5th Cir. Sept. 6, 2018): The Consumer Financial Protection Bureau issued a civil investigatory demand (CID) to Defendant The Source for Public Data (“SPD”), a company that provides public records through an online search engine. SPD objected, in part arguing the Bureau failed to comply with the governing statute authorizing the CID. Under 12 U.S.C. § 5562(c) (2), a CID must “state the nature of the conduct constituting the 20

AUSTINLAWYER | NOVEMBER 2018

alleged violation which is under investigation and the provision of law applicable to such violation,” otherwise known as the “notification of purpose.” The notification of purpose issued in this CID indicated the Respondent was investigating “unlawful acts and practices […] in violation of the [FCRA] […] or any other federal consumer financial law” but did not further specify the nature of such conduct or identify an applicable provision of law. The Court reviews administrative subpoenas using the “reasonable relevance” standard, which includes determining “the information sought is reasonably relevant to the inquiry” and “the demand is not unreasonably broad or burdensome.” The Court noted that in the absence of any specificity in the notification of purpose, it could not conduct a reasonable relevance review, preventing meaningful opportunity for judicial review. Citing precedent the Court stated: “[b]ecause the validity of a CID is measured by the purposes stated in the notification of purpose, the adequacy of the notification of purpose is an important statutory requirement.” ACICS, 854 F.3d at 690. The Court held that the Bureau failed to meet this statutory requirement, and reversed and rendered judgment against the Bureau. ERISA/COBRA: Where an ERISA plan has been terminated without notice, a Petitioner may be entitled to recover from the plan administrator penalties and “such other relief as [the court] deems proper,” including medical expenses. Hager v. DBG Partners, Inc., No. 17-11147 (5th Cir. Sept. 6, 2018): Plaintiff-Appellee Hager was terminated by DBG, and opted under the Consolidated Omnibus Budget Recovery Act (COBRA) to continue receiving health insurance under the Respondent’s ERISA plan. Later, DBG terminated its health

plan. Hager underwent cancer treatment, and continued paying premiums to DBG until he realized he was without coverage. Hager sued, seeking medical expenses for the period he was not covered, alleging DBG failed to effectively notify him that the plan was being terminated. The trial court ultimately dismissed Hager’s COBRA action with prejudice sua sponte shortly before trial. Hager appealed. The Court determined that although many claimed avenues of statutory relief were indeed foreclosed, Hager may be entitled under 29 U.S.C. § 1132(a)(1)(A) and 29 U.S.C. § 1132(c)(1) to penalties against an ERISA plan administrator. The Court found this remedy is available “for failure to provide notice of the termination of the relevant health plan to a COBRA-covered former employee.” The Court further found “no barrier to the court awarding the amount of […] medical expenses as a penalty.” While the refusal to award penalties is generally reviewed for abuse of discretion, the Court noted the district court did not merely decline an award but found Hager ineligible for any award, which was an “erroneous legal conclusion.” The Court reversed the district court’s total denial of a remedy under COBRA and remanded for the district court to consider penalties and attorneys’ fees, and to determine whether DBG’s alleged attempts to provide notice were effective and in good faith. CONTRACTS: Texas law recognizes no prejudice requirement to a breach of contract claim where the alleged breach is of a conditions-precedent clause. Conn Credit I v. TF Loanco III, LLC, No. 17-40148 (5th Cir. Sept. 10, 2018): Conn Credit I, LLP entered an arrangement with TF Laonco III, LLC to sell a portfolio of charged-off accounts, some being transferred

upfront with the remainder to be delivered at future intervals. After some account deliveries, Conn Credit sued for breach of contract, as TF Loanco had declared that it would not fund future transfers under the agreement. Conn Credit I counterclaimed, arguing TF Loanco III’s conduct with the charged-off accounts had violated Texas law, and compliance with all applicable laws was a condition precedent to their arrangement. The district court found for Conn Credit, holding among other findings that even if compliance with all applicable law was a condition precedent to the incremental delivery of accounts, TF Loanco nevertheless suffered no prejudice as the condition was not an “essential part of the [bargain].” The Court analyzed the Sale Agreement, under which TF Loanco was “obligated to transfer Accounts on a Closing Date only if […] the representations and warranties […] are true and correct as of such Closing Date.” The Court found this was an “unambiguous condition precedent.” Imposing a prejudice requirement to a condition precedent was an error under Texas law, which has only ever excused the performance of a condition precedent where “the condition’s requirement (a) will involve extreme forfeiture or penalty, and (b) its existence or occurrence forms no essential part of the exchange for the promisor’s performance.” The Court disagreed with the district court’s waiver finding, as it had failed to consider the explicit nonwaiver provision of the Sale Agreement. The Court thus reversed the lower court’s opinion and remanded for further consideration of damages. The Court also held that under Texas Occupations Code § 1304.159(c), the meaning of “purchase price” does not distinguish between a contract AUSTIN LAWYER AL AL purchased upfront or on credit.

Apply Now for 2019 AYLA/Austin Bar Leadership Academy

pplications for the 2019 AYLA/Austin Bar Leadership Academy class are now being accepted. The deadline to apply is Friday, Nov. 16, 2018. The Leadership Academy was established to assist local lawyers with making a difference and impacting the Austin community, serving local bar associations, and promoting professional development. The program brings together a diverse group of attorneys from a variety of practice areas, firm sizes and types, and levels of experience. The Leadership Academy kicks off with an all-day retreat on Jan. 8, 2019. Participants will learn more about the Leadership Academy’s purpose and upcoming sessions and will spend the day networking with one another and meeting with AYLA and Austin Bar leaders. Following the retreat, the program offers a series of five lunch or evening presentations where participants engage and network with local leaders involved in public policy, government, private sector, non-profits, and bar associations. Past presenters have included Senator Kirk Watson, Mayor Steve Adler, Federal District Judge Robert Pitman, State District Court Judge Karin Crump, State Representative Eddie Rodriguez, and Travis County Judge Sarah Eckhardt. The Leadership Academy also includes a class project in which participants seek to have an impact on their community. The 2018 class created a documentary entitled “Law: A Tradition of Service,” documenting and preserving landmark legal and societal contributions of Central Texas lawyers with the goal of inspiring young people to participate in the practice of law and increase civil engagement. The program culminates with a graduation ceremony at which local bar leaders provide information

on next steps for community involvement. To access the application please visit www.austinbar.org/ austin-bar-ayla-leadership-academy. Questions? Contact Emily Morris at Emily@morrisbusinesslaw.com, or Michael Roberts at AUSTIN LAWYER AL AL mroberts@jw.com.

RIGHT: Members of the 2018 Leadership Academy class before their graduation reception.

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AUSTIN YOUNG LAWYERS ASSOCIATION

Judicial Reception a Success

n Thursday, Sept. 20, the Austin Young Lawyers Association (AYLA) held its 20th annual Evening with the Judiciary at the Austin Club. This reception provides AYLA members with an opportunity to share an evening of great food and even better conversation with local, state, and federal judges. This year was no exception. AYLA members who took advantage of this opportunity were treated to an entertaining evening with judges from courts of all levels. AYLA extends a special thank you to all of the judges

ABOVE: (from left) Judges Karin Crump, Orlinda Naranjo, Karen Sage, Tamara Needles, Brandy Mueller, Gisela Triana, Julie Kocurek, and Amy Clark Meachum at AYLA’s Evening with the Judiciary.

who attended and to all event sponsors for making this successful event possible. For more information about upcoming outstanding AYLA

Committee Spotlight: Docket Call Creates Community BY FRANCESCA DI TROIA AND SARAH HARP

ocket Call is a and is held at different venues in monthly social the central Austin area. event for AYLA The next Docket Call will members to nettake place on Thursday, Nov. work with one another, and for 15 at Parlor and Yard located sponsors to have an opportunity at 601 W 6th Street, starting to meet potential clients and at 5:30 p.m. For more informalearn more about the needs of tion, please email Sarah Harp the legal community. at sarah-harp@utulsa.edu. Docket Call takes place on the WeLAWYER look forward to seeing you AUSTIN AL AL third Thursday of every month there!

AYLA members enjoying conversation and making connections at a monthly Docket Call. 22

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events, please AUSTIN LAWYER AL AL visit ayla.org.

AUSTIN YOUNG LAWYERS ASSOCIATION

Probate Creditors and Marital Property Liability BY ERIC NELSON

ost attorneys know the very basic insand-outs of probate law—dying with a will is better than dying without one, creating a trust can help avoid the probate process, etc. However, attorney friends sometimes ask me very practical probate questions, the answers to which I wish more of them knew. One of the more frequently asked questions is: “Am I responsible for my spouse’s debt(s) if he/ she passes away?” The answer, as you may expect, is: “Well, it depends.” Determining what property can be used to satisfy the debts of an estate can be a complicated, multi-step process. When someone passes away, there are two types of creditors that may come calling: secured and unsecured creditors. A secured creditor has a lien attached to a piece of property— for example, a home mortgage or an auto loan. When a debtor dies and payments are not made, the lender can pursue any remedy available under the agreement with the debtor, which typically means they can simply reclaim

Determining what property can be used to satisfy the debts of an estate can be a complicated, multi-step process. the property to satisfy their lien. Often, the heirs prefer to sell the collateral and pay off the lien if the collateral is worth more than the outstanding balance. If the property is co-owned (by a surviving spouse, for example), the co-owner can work with the lender to refinance the loan or assume the lien. Either way, the creditor has recourse because their lien is secured. On the other hand, unsecured creditors must go through the court system to collect on debts. Thus, some complexities can arise when a person passes away with unsecured debt. The most common examples of unsecured debt are credit cards, medical bills, and student loans. Whether the deceased person has a solvent estate, whether the unsecured creditors present their claims to an executor, and whether there is a surviving spouse are common factors that throw wrenches into

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this now complex probate system. Here’s an example: Let’s say Wife has a bank account with a balance of $10,000 and a car worth $10,000, and she owes $10,000 in credit card debt. Wife owes $5,000 on the car and she charged the $10,000 to her credit card during her marriage to Husband. A year later, Wife tragically passes away in a car accident and a month later, creditors begin hounding Husband for payment. What does Husband do? Should he pay off the car? What about the credit card? How does this typically play out in the probate process? We will assume that Wife passed away with a will that leaves her entire estate to Husband and that appoints Husband as the independent executor of her estate. First, Husband should probate the will, obtain letters testamentary, and begin notifying the creditors of Wife’s passing. Because the car has a secured lien, Husband would likely refinance the car and continue making the payments. However, the credit card is unsecured debt. Husband, as the independent executor of the estate, will notify the credit card company that Wife has passed away, and the credit card company will have the opportunity to present its claim. Assuming the credit card company validly presents its claim for $10,000, there’s only $5,000 left in Wife’s estate (half of the value of the bank account—assuming it was community property). Who has to pay the remaining $5,000 to the creditor? Does it get wiped out or can the creditor come after Husband?

Eric Nelson is an associate attorney at Warren & Lewis in Austin. His practice focuses on wills, trusts, and estates.

In most circumstances, the credit card company will try to satisfy the debt by only coming after the assets that are in Wife’s estate. Because Wife’s estate is insolvent, the credit card company will likely count its losses, walk away, and write it off. However, considering several factors like whether the credit card was a joint credit card with Husband, what kind of items Wife purchased, and the character of the contractual obligation with the credit card company, it’s possible that Husband could be on the hook for the credit card balance. That being said, if the credit card company can come after Husband, it does not mean they will, and they often never do. Navigating the probate process can sometimes be a daunting task—especially when creditors are involved. Every attorney at one point or another, whether for personal or professional reasons, will be faced with a question regarding probate law. Some situations may be more complex than others, but the more you know, the more you can help your family friend the nextLAWYER time they call AUSTIN AL AL for free legal advice. NOVEMBER 2018 | AUSTINLAWYER

PRACTICE POINTERS

Tips for Cost Effective Discovery BY STEFANIE SCOTT SHAH can be avoided. Here are a few tips to streamline the process and save you and your client time, money, and headaches.

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

iscovery is expensive. I know this. You know this. The attorney down the hall who has never stepped inside a courtroom knows this. A (very dated) 2008 study by the Institute for the Advancement of the American Legal System estimated that discovery costs approximately $3.5 million for a “midsize” case. A (dated) 2012 RAND Institute study found that it costs a total of $18,000 to review a gigabyte of data. Given the general shift in maintaining documents in electronic, rather than hard copy, format, it’s safe to assume there exists even more potentially discoverable documents in any given case today than there did ten years ago. So it’s not surprising that, to this day, discovery remains one of the most expensive aspects of litigation. Some clients can afford to pay for a no-holds barred discovery fight; some clients cannot. But no client wants to waste resources on the discovery process if it 24

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Know What You Want It’s true that you won’t necessarily know what documents the opposing side has in its possession, custody, or control. But you should know what discovery (at least at a high level) you need to win your case and/or to encourage settlement. Draft discovery requests to specifically seek these documents/information and refrain from catch-all document requests. In response to a truly overbroad document request, the responding party is likely to either (1) object that the request is overbroad and refuse to produce documents or (2) produce mounds of documents—in an effort to both hide the damaging needles (i.e., documents) in the proverbial document haystack and burden the requesting party with a lengthy review of documents. Negotiating ESI Agreements In negotiating the electronically stored information (ESI) agreement, you want to consider all the documents you will need to review; this includes both documents you are going to produce to the opposing party (a review of which is necessary to protect privilege and refrain from producing potentially harmful documents that are not responsive to a discovery request) and documents that are produced by the opposing party. After doing so, work with opposing counsel to determine the relevant custodians of record and to limit searches to specific Boolean queries. Negotiating an ESI agreement early in the process can drastically reduce the number of documents being reviewed by both parties and, as a result, simplify discovery.

Negotiating an ESI agreement early in the process can drastically reduce the number of documents being reviewed by both parties and, as a result, simplify discovery. Is It Worth the Fight? Lawyers have a tendency to argue for the sake of arguing, especially if they think the law is on their sides. You might know, for example, that in Texas state court, an interrogatory is an improper vehicle to seek information regarding testifying experts. However, when the opposing side seeks to compel this information, you should consider whether the battle is worth the fight—particularly given that the information eventually will be disclosed during the discovery process and that compromising on this point could give you leverage in a battle that is actually worth fighting. Similarly, carefully think before filing and arguing a motion to compel. Courts do not appreciate discovery battles and, unless the other party is acting egregiously, you are often better off working through these differences with the opposing side. Don’t Be Afraid of AI (and other discovery tools) Artificial intelligence is the future. Don’t be afraid to understand AI and leverage it (and other discovery tools) in conducting document review. The 2012 RAND study mentioned earlier found that approximately 73 percent of the cost of producing electronic documents was attributable to the review of documents for relevance, responsiveness, and privilege. If you use third party vendors—including those with AI capabilities—in your document review, you will cut

down on attorney hours and save your client money. Request Cost-shifting If you are unsuccessful in negotiating a streamlined discovery process with opposing counsel (and the requested electronic document production is particularly onerous), consider filing a motion for a protective order under Federal Rule of Civil Procedure 26 and asking the court to shift costs. In 2015, Rule 26 was amended to permit cost-shifting, in an effort to make the discovery process more “proportional.” Although it is presumed that the responding party will bear the costs of its electronic production, the court can shift costs to the requesting party if the requested discovery violates Rule 26’s proportionality test. In determining whether discovery warrants cost-shifting, federal courts have analyzed, inter alia, the following proportionality factors: the needs of the case; the amount in controversy; the parties’ resources; the importance of the issues at stake; and the importance of the proposed discovery in resolving those issues. Of course, as with motions to compel, seek cost-shifting sparingly. The Advisory Committee Notes explain that the Rule 26 amendment was designed to explicitly recognize courts’ authority to shift costs, not to make cost-shifting the new norm. If you think outside the traditional discovery box, you can successfully craft a cost-conscious plan that your clients will thank you for—or, rather, would thank you for, if they knew the AUSTIN LAWYER AL AL alternative.

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

AUSTINLAWYER | NOVEMBER 2018

ADVERTISERS Apple Leasing . . . . . . . . . . . . . . . 6 Armbrust & Brown, PLLC . . 17 Broadway Bank . . . . . . . . . . . . . 28 BurnettTurner . . . . . . . . . . . . . . 21 Financial Valuation Services, LC . . . . . . . . . . . . . . . . . 8 Floyd Real Estate . . . . . . . . . . . 14 Foster, LLP . . . . . . . . . . . . . . . . . . 4 Goranson Bain Ausley . . . . . 25 Horizon Bank . . . . . . . . . . . . . . . 12 Judge Stephen Yelenosky . . 19 Judge Suzanne Covington . . . . . . . . . . . . . . . . . . . 18 Kirker Davis LLP . . . . . . . . . . . . 27 Lakeside Mediation Center . . . . . . . . . . . . . . . . . . . . . . 26 Law Office of Tim Whitten . . . . . . . . . . . . . . . . 17 LawPay . . . . . . . . . . . . . . . . . . . . . . 2 Loewy Law Firm . . . . . . . . . . . . 9 Moore & Associates, Inc. . . . 26 Noelke Maples St. Leger Bryant LLP . . . . . . . . . . . . . . . . . . 12 Patrick Keel . . . . . . . . . . . . . . . . . 17 She Spies Private Eye, Inc. . 13 Shuart & Associates . . . . . . . . 14 Slack Davis Sanger LLP . . . . 7 St. Clair Coaching . . . . . . . . . . 16 Texas Lawyer Insurance Exchange . . . . . . . . . . . . . . . . . . . . 3 The Gottfried Firm, P.C. . . . . 10 The Snell Law Firm . . . . . . . . . 11 The University of Texas at Austin . . . . . . . . . . . . . . . . . . . . . . . 16 Thomas Esparza, Jr. PC . . . . 3

1. Publication Title

Statement of Ownership, Management, and Circulation (All Periodicals Publications Except Requester Publications)

Austin Lawyer 4. Issue Frequency

West, Webb, Allbritton & Gentry, P.C. . . . . . . . . . . . . . . . 14

Monthly, except for combined issues in July/Aug and Dec/Jan.

3. Filing Date

2. Publication Number

3 5

5. Number of Issues Published Annually

9/20/18 6. Annual Subscription Price

$10

7. Complete Mailing Address of Known Office of Publication (Not printer) (Street, city, county, state, and ZIP+4 ®)

Contact Person

816 Congress Ave., Ste. 700, Austin, TX Travis County, 78701-2665

Telephone (Include area code)

8. Complete Mailing Address of Headquarters or General Business Office of Publisher (Not printer)

13. Publication Title

816 Congress Ave., Ste. 700, Austin, TX Travis County, 78701-2665 9. Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor (Do not leave blank) Publisher (Name and complete mailing address)

Monarch Media & Consulting, Inc. P.O. Box 20085, Austin, TX 78720-0850

September, 2018

Distributed to members of the Austin Bar Association a. Total Number of Copies (Net press run)

Nancy Gray

512-472-0279

14. Issue Date for Circulation Data Below

Austin Lawyer 15. Extent and Nature of Circulation

(1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541 (Include paid distribution above nominal rate, advertiser’s proof copies, and exchange copies) b. Paid Circulation (By Mail and Outside the Mail)

(2)

Mailed In-County Paid Subscriptions Stated on PS Form 3541 (Include paid distribution above nominal rate, advertiser’s proof copies, and exchange copies)

(3)

Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS®

(4)

Paid Distribution by Other Classes of Mail Through the USPS (e.g., First-Class Mail®)

c. Total Paid Distribution [Sum of 15b (1), (2), (3), and (4)]

Editor (Name and complete mailing address) d. Free or (1) Free or Nominal Rate Outside-County Copies included on PS Form 3541 Nominal Rate Distribution (2) Free or Nominal Rate In-County Copies Included on PS Form 3541 (By Mail and Free or Nominal Rate Copies Mailed at Other Classes Through the USPS Outside (3) (e.g., First-Class Mail) the Mail)

Kennon Wooten 816 Congress Ave., Ste. 700, Austin TX 78701-2665 Managing Editor (Name and complete mailing address)

Nancy Gray 816 Congress Ave., Ste. 700, Austin TX 78701-2665 10. Owner (Do not leave blank. If the publication is owned by a corporation, give the name and address of the corporation immediately followed by the names and addresses of all stockholders owning or holding 1 percent or more of the total amount of stock. If not owned by a corporation, give the names and addresses of the individual owners. If owned by a partnership or other unincorporated firm, give its name and address as well as those of each individual owner. If the publication is published by a nonprofit organization, give its name and address.) Full Name Complete Mailing Address

Austin Bar Association

816 Congress Ave., Ste. 700, Austin TX 78701-2665

(4)

Free or Nominal Rate Distribution Outside the Mail (Carriers or other means)

e. Total Free or Nominal Rate Distribution (Sum of 15d (1), (2), (3) and (4))

f. Total Distribution (Sum of 15c and 15e)

g. Copies not Distributed (See Instructions to Publishers #4 (page #3))

h. Total (Sum of 15f and g) i. Percent Paid (15c divided by 15f times 100) 11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or None Other Securities. If none, check box Full Name

Average No. Copies No. Copies of Single Each Issue During Issue Published Preceding 12 Months Nearest to Filing Date

3,353 164 3,119

3,077 132 2,895 0

0 0

3,283

3,027

0 0

3,283 70 3,353 100%

3,027 50 3,077 100%

* If you are claiming electronic copies, go to line 16 on page 3. If you are not claiming electronic copies, skip to line 17 on page 3.

Complete Mailing Address

12. Tax Status (For completion by nonprofit organizations authorized to mail at nonprofit rates) (Check one) The purpose, function, and nonprofit status of this organization and the exempt status for federal income tax purposes:

Has Not Changed During Preceding 12 Months Has Changed During Preceding 12 Months (Publisher must submit explanation of change with this statement)

PS Form 3526, July 2014 [Page 1 of 4 (see instructions page 4)] PSN: 7530-01-000-9931

PRIVACY NOTICE: See our privacy policy on www.usps.com.

PS Form 3526, July 2014 (Page 2 of 4)

NOVEMBER 2018 | AUSTINLAWYER