austinbar.org NOVEMBER 2021 | VOLUME 30, NUMBER 9
Sign of the Times: Changes in Travis County Courts Where We’ve Been, Where We’re Going BY JUDGE AMY CLARK MEACHUM
O
n March 13, 2020, the civil and family courts leadership team met to discuss shutting down our physical space for a few weeks while the worst of the pandemic passed. Well, here we are 20 months later. While the in-person operations of the courthouse have remained limited, our judges and court staff have worked more this past year than at any time in my 11 years on the bench. The Austin Bar Association has been incredible at adapting to a changing legal landscape. And the public, litigants, and stakeholders have been responsive to and appreciative of these efforts and have adjusted with the times. We have reached—and now exceeded—hearing numbers from pre-pandemic dockets, all while remaining virtual and keeping the public safe from exposure to the coronavirus. This has been a remarkable feat, and I am proud of our accomplishments together. In 2021, we are conducting more hearings on our civil long and short dockets and our family dockets than in 2019—our last “normal” year. And on our family
short dockets, we have held more than 50% more hearings over our 2019 numbers! Through August 2019, our judges had conducted 1,168 short family docket hearings. In 2021, that number is 1,769 hearings! We have also conducted 17 virtual jury trials. And we will continue to hold virtual jury trials for as long as doing so is prudent and practical. In the virtual platform, civil courts are operating at higher than pre-pandemic capacity in all areas except jury trials. So, when we will be open for “normal” courthouse operations, and when will we have in-person jury trials? The truth is, there is probably no returning to a pre-pandemic “normal.” There is only the future —where we all accept (whether we want to or not) that remote platforms are here to stay and adapt to a practice of law that is both in-person and virtual— combining to create a hybrid “new normal.” Great news is on our horizon: Our new Travis County Civil and Family Courthouse is on schedule for a Fall 2022 opening. And this new space will be updated
In the virtual platform, civil courts are operating at higher than pre-pandemic capacity—in all areas except jury trials. with technologically advanced courtrooms and configured for in-person matters, as well as virtual and hybrid proceedings. Our current space at Heman Marion Sweatt Courthouse (HMS) is lacking many of these updates. In addition, HMS is 91 years old with many cramped courtrooms, small elevators, scant public spaces, and complicated ventilation systems. Therefore, the civil courts, in conjunction with the District Clerk and other stakeholders in the building, are wrestling with what and how many improvements to make given the practical realities of the pandemic and a new courthouse
right around the corner! So how do we move forward in the meantime, continuing to recognize the challenges we face? A few updates on that front: • Now that Travis County is back to Stage 3, the civil courts will resume our pilot project for in-person jury trials on Nov. 1, 2021. This project was cut short this past summer when coronavirus cases began to spike again. During the pilot period, we will continue to enforce spatial distancing and masking during jury trials at HMS. We will exercise our continued on page 10
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CONTENTS
AUSTINLAWYER NOVEMBER 2021 | VOLUME 30, NUMBER 9 AL A L INSIDE FEATURED ARTICLES
DEPARTMENTS
CONNECTIONS
1
Sign of the Times: Changes in Travis County Courts Where We’ve Been, Where We’re Going
6
ONLINE austinbar.org
Courts and Clerks of Travis County: Changes for 2022 Changes in Civil Filing Fees
8
President's Column
11 Third Court of Appeals
Civil Update
12 Third Court of Appeals
Criminal Update
13 Federal Civil Court Update 14 Criminal Court News 16 Briefs 19 Opening Statement 20 AYLA 22 Practice Pointers
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’Tis the Season: Be a Good Human!
I
t has been a couple of years since we’ve gotten to experience the most wonderful time of year in all of its glory, but from what I can recall we have a lot to look forward to. There is, of course, the annual Thanksgiving Day game between Texas and Texas A&M, the lighting of the magnificent Capitol tree, and walking the Trail of Lights. Oh, and I cannot wait to see A Charlie Brown Christmas on ABC. Some traditions just can’t be broken! Wait! I am sorry. I have just been informed that it has been ten years since Justin Tucker and the Longhorns last played the Aggies. I am also told that the Capitol tree is now a “cone,” we’re driving the Trail of Lights again (so retro!), and the Peanuts Gang is now streaming on Apple TV. This has undoubtedly been the longest two years of my life!
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AUSTINLAWYER | NOVEMBER 2021
Fear not, Linus Van Pelt! I bring unto you good tidings of great joy, for the spirit and the joy of the Season remains! We do live in Austin, Texas, after all, where a decades-old tradition can be created over lunch. We can still take a spin under the Zilker Tree. We can be dazzled by the light show at Mozart’s (nightly beginning in November). We can shop at the Junior League of Austin’s A Christmas Affair (Nov. 17 – 21), still one of my favorites! There’s ice skating at Whole Foods, A Christmas Carol at the Zachary Scott Theatre (Nov. 17 – Jan. 2), and The Nutcracker at the Long Center (Dec. 4 – 23). As I already mentioned, we can also drive the Trail of Lights, just as we did in the 80s (Nov. 27 – Dec. 31) or drive down to Johnson City and witness the wonderland that is the PEC Holiday Lights (Nov. 27 – Jan. 3). Most importantly, we can still all partake in my most favorite Austin tradition: spreading joy and love to others, or maybe more appropriately, practicing being a good human! What does it mean to be a good human? For that I go to my daughter. She would say, being kind, being thoughtful, and doing the right thing. The phrase
(from left): Ashlyn (niece), David Courreges, Brooklyn (niece), McKenna (daughter), Cera (niece), and Savannah (niece).
has become somewhat of a motto within our family. It began when our friend Shannon gave us T-shirts with the simple, yet powerful, statement and continues in trying to honor the phrase in everything that we do. To me the concept is the very spirit of the holiday season. So how can you spread love and joy? The first thing that comes to my mind is this thought: Be there for others. This season of hope and happiness can be, for many, just the opposite. We are engaged in a profession with heightened feelings of stress and anxiety; we have chosen to take on the
burdens of others. This difficult task can often be overwhelming. Sometimes a friendly and understanding voice can help. Be that voice. Of course, the Texas Lawyers Assistance Program (tlaphelps.org, 1.800.343.TLAP) is available if a safe and confidential resource is ever needed. You can also volunteer. While the opportunities in Austin are too numerous to list, I once again enlist my daughter, the researcher laureate of the family, to give us her favorite Austin-area charities that would love to be the recipients of your volunteer time. You will find her recommenda-
tions following this article. Be thankful for others. We cannot do what we do within a profession or an organization without others. With that sentiment in mind, I wish to thank our outstanding team at the Austin Bar and Austin Young Lawyers Associations, our coworkers, and our families! To each of you, our members and volunteers, thank you for all that you do, especially your dedication to the legal profession and the community in which we live. I appreciate each and every one of you. You are valued and loved. To all: Have very happy, healthy, and safe holidays. I look forward to seeing you very soon! McKENNA’S LIST OF CENTRAL TEXAS VOLUNTEER OPPORTUNITIES
• Central Texas Food Bank has weekend and weekday volunteer opportunities helping prepare food donations for distribution and distributing food at mobile food pantries.
(centraltexasfoodbank.org) • Caritas of Austin has volunteer opportunities available including serving a nutritious lunch, working with clients directly to achieve their life goals, or supporting staff members. (caritasofaustin.org/ get-involved/volunteer) • Brighter Bites – Austin delivers fresh food and education materials to families. Volunteers help distribute produce boxes in Austin. (brighterbites.org/volunteer) • Trinity Center is dedicated to supporting Austin’s homeless population. They have a small staff of six who rely heavily on volunteers to support their mission. (trinitycenteraustin. org/volunteer) • Generation Serve provides community volunteering opportunities to youth and their families. (generationserve.org/ familyvolunteering.html)
• Austin Allies, established on the notion of being kind to others, provides opportunities for families to volunteer throughout Austin by partnering with organizations that need the most help and support. (austinallies.org) • BookSpring is a longtime partner of the Austin Bar and helps make our Courthouse Book Initiative a success. Volunteer to help sort and distribute reading materials for kids. (bookspring.org/en/ support/volunteer) • Austin Pets Alive, another longtime Austin Bar favorite, needs a myriad of volunteers to help ensure the safety and security of our lost pet population. (austinpetsalive. org/volunteer) • Austin Wildlife Rescue is dedicated to assisting and rehabilitating our area’s wildlife and has opportunities to volunteer throughout the year. (austinwildliferescue.org/
volunteer) • Keep Austin Beautiful promotes safe and fun volunteer activities focused on Love Where You Live Day, which occurs every second Saturday of the month. (keepaustinbeautiful.org/ volunteer-opportunities) • Breast Cancer Resource Center of Texas relies on volunteers to improve the lives of thousands of women living in Central Texas. Opportunities range from taking and making calls to clients, delivering vital resources, and volunteering at fundraising events. (bcrc.org/ volunteer/) • American Youthworks provides young people with opportunities to build careers, strengthen communities, and improve the environment. Volunteers tutor, mentor, speak, and serve during a day of service. (americanyouthworks.org/ AUSTINLAWYER AL AL support/volunteer-3/)
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Courts and Clerks of Travis County: Changes for 2022 Changes in Civil Filing Fees BY VELVA PRICE, DISTRICT CLERK, TRAVIS COUNTY tion, as required by the Texas Rules of Civil Procedure and additional statutes. Please note that exemptions may apply to these requirements. The list of required information is as follows: • Names of the parties. Tex. R. Civ. P. 79; Tex. Gov't Code § 51.303. • Last three digits of drivers license number and social security number. Tex. R. Civ. P. 45(c); Tex. Civ. Prac. & Rem. Code § 30.014. Velva Price began serving as the Travis County District Clerk in January 2015. Price is a licensed attorney and began her second term in January 2019. One of her duties is to inform and prepare attorneys and the legal community of transitions in the District Clerk's Office that may affect their practice.
T
hank you everyone for your patience as the Courts and Clerks of Travis County transitioned to Odyssey, our new internal case management system. HOW DOES THIS AFFECT THE PUBLIC? With the implementation of the new internal case management system, the inputting of information should be faster, and the information should be available more quickly. The transition to the new Odyssey system does not require anyone outside of Travis County to learn this system except when using the public terminals.
Civil Court Costs: Civil court costs changes take effect on Jan. 1, 2022, but the changes do not apply to some family law actions. See Tex. Loc. Gov’t Code §§ 135.101(b), 135.102(b) for the updated court cost schedules. In addition, we ask that filers include the following informa-
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AUSTINLAWYER | NOVEMBER 2021
• Parties’ residential/business addresses. Tex. Civ. Prac. & Rem. Code §§ 30.014, 30.015; Tex. Gov't
Code § 51.303; Tex. R. Civ. P. 45(c), 79. If you have questions, please call 512.854.9457 or email districtclerkhelp@ AUSTIN LAWYER AL AL traviscountytx.gov.
With the implementation of the new internal case management system, the inputting of information should be faster, and the information should be available more quickly. New Civil Cases filed on or after 1/1/22* Local Consolidated Fee
$213.00
State Consolidated Fee
$137.00
TOTAL FILING FEE
$350.00*
Civil Actions within Existing Cases after 1/1/22 Local Consolidated Fee
$35.00
State Consolidated Fee
$45.00
TOTAL FILING FEE
$80.00
Probate Cases filed after Probate Proceeding, Guardianship, and Mental Health Cases filed on or after 1/1/22* Local Consolidated Fee
$223.00
State Consolidated Fee
$137.00
TOTAL FILING FEE
$360.00
Probate, Guardianship, and Mental Health Actions filed on or after 1/1/22 Local Consolidated Fee
$75.00
State Consolidated Fee
$45.00
TOTAL FILING FEE
$120.00
*Effective Jan. 1, 2022, the Jury Fee provision, Tex. Gov't Code § 51.604, will be repealed and replaced with the County Jury Fund, Tex. Loc. Gov't Code § 135.156. The additional filing fees will be allocated to the County Jury Fund, Tex. Loc. Gov't Code §§ 135.101, 135.102.
Sign of the Times: Changes in Travis County Courts Where We’ve Been, Where We’re Going continued from cover
discretion to determine which cases currently set for the Fall 2021 jury dockets will be scheduled for in-person trials. • Meanwhile, our capable judges and staff will continue our innovative virtual trials to meet the demands of our dockets during this time.
We recognize that many of the technological advancements are here to stay and we are beginning early discussions on what our dockets will look like starting in 2023 and beyond. in person —and what matters can stay virtual for now.
• After the holidays, if COVID-19 numbers continue to stay manageable in the community, we will begin soft openings for additional long-docket hearings in early 2022. So please stay tuned for more information from Court Administration on that front.
• In addition, we recognize that many of the technological advancements are here to stay, and we are beginning early discussions on what our dockets will look like starting in 2023 and beyond.
• Depending upon supply and demand as we move through 2022, we will explore which of our other dockets and hearings will be moving back
We are asking for the Austin Bar Association’s help in this reimagining of our civil justice system as we move toward a new normal. We appreciate your
patience and understanding, and we welcome your input. Please do not hesitate to contact us if you have questions, comments, or concerns about these plans. And we look forward to the Austin Bar Association members being our partners and collaboratorsLAWYER in this changing legal AUSTIN AL AL landscape.
Arielle Rosvall
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AUSTINLAWYER | NOVEMBER 2021
Judge Amy Clark Meachum has served as the judge of the 201st District Court since January 2010. She served as the Travis County Civil Presiding Judge from September 2019 through August 2021, and she was recently selected by her judicial peers as the Local Administrative Judge for Travis County, effective Sept. 1, 2021.
THIRD COURT OF APPEALS CIVIL UPDATE
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The following are summaries of selected civil opinions issued by the Third Court of Appeals during September 2021. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of Oct. 5, 2021.
FAMILY LAW: Court affirms order modifying ambiguous property division. Jones v. Jones, No. 03-20-00417CV (Tex. App.—Austin Sept. 15, 2021, no pet. h.) (mem. op.). The parties’ divorce decree divided Paul’s military retirement benefits by referencing a domestic relations order but did not attach the order. Years after the divorce, Teresa contended that Paul violated the decree by failing to pay her portion of his military retirement. The trial court awarded Teresa 34% of Paul’s military retirement. According to the court of appeals, Family Code § 9.007, which prohibits a trial court from modifying the substantive division of property, did not apply. Decrees that award each spouse all sums of military retirement except those awarded to the other spouse constitute a division of benefits albeit ambiguously because it omits the percentages. With an ambiguous property division, a trial court may clarify it without changing the decree’s
substantive division of property. The court affirmed. TRIAL PROCEDURE: Court affirms order reviving dormant judgment. Cornejo v. Internat’l Bank of Commerce, No. 03-21-00019CV (Tex. App.—Austin Sept. 22, 2021, no pet. h.) (mem. op.). IBC obtained a judgment against Cornejo in May 2008. In August 2008, a writ of execution was returned nulla bona. In July 2018, ten years after issuance of the writ of execution, IBC’s judgment became dormant. In April 2020, less than two years after the judgment became dormant, IBC filed a writ of scire facias to revive the judgment. IBC obtained substituted service on July 23, 2020 and a month later served Cornejo. The trial court revived the judgment. Cornejo challenged IBC’s diligence in serving him. The court of appeals noted that reviving a judgment is not discretionary if the statutory requirements are met. The short delays reflected IBC’s efforts to locate Cornejo. Thus, the court held that IBC was diligent and affirmed. FAMILY LAW: Court reverses marital property division. Morris v. Veilleux, No. 03-2000385-CV (Tex. App.—Austin Sept. 24, 2021, no pet. h.) (mem. op.). In its divorce decree, the trial court awarded Morris
51% of the value of the marital estate and Veilleux 49%. The trial court included in marital estate $131,000 attributable to a condo. Title to the condo was in the names of Morris, Veilleux, and Morris’s father, Roger. The trial court treated Roger as a constructive trustee with no ownership interest. The court of appeals disagreed, noting that a constructive trust arises only with a breach of fiduciary duty or fraud. Thus, Roger’s ownership interest must be deducted from the community estate, leaving 54% to Veilleux and 46% to Morris. The court held that when a mischaracterization of property is more than de minimis, it must remand. The court affirmed in part but reversed and remanded the property division.
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.
notify School District that it was seeking a TRO until after the trial court signed the order. The court of appeals concluded that MANDAMUS: Court grants rethe order fails to comply with lief where order fails to comply Tex. R. Civ. P. 680’s requirewith Tex. R. Civ. P. 680. ment to state “why the order was granted without notice.” Orders In re Round Rock Indep. Sch. that fail to comply with Tex. R. Dist., No. 03-21-00472-CV (Tex. Civ. P. 680 and 684 are void. App.—Austin Sept. 24, 2021, Thus, the trial court abused its orig. proceeding) (mem. op.). discretion. School District had School District implemented a no adequate appellate remedy mask requirement as part of its because a TRO is not appealable. safety protocols. State contended The court granted mandamus AUSTIN LAWYER the mask requirement violated AL A L relief. Executive Order GA-38 and sought temporary and permanent injunctive relief. The trial court entered an ex parte temporary restraining order (TRO) prohibiting enforcement of the mask mandate. State did not
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THIRD COURT OF APPEALS CRIMINAL UPDATE
Zak Hall is a staff attorney for the Third Court of Appeals. The summaries represent the views of the author alone and do not reflect the views of the court or any of the individual Justices on the court.
>
The following are summaries of selected criminal opinions issued by the Third Court of Appeals from March 2021. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Oct. 1, 2021.
warrant for Schneider’s blood and obtained a sample approximately two hours after Schneider was arrested. However, the sample was placed in storage for over a month before being tested. The test results showed a blood-alcohol level of 0.109. Although Schneider’s counsel filed a motion to suppress the evidence, no hearing on the motion was held, and Schneider was convicted of DWI. On appeal, Schneider argued that trial counsel was ineffective for failing to challenge the admissibility of the testing performed on the sample of her blood. Schneider asserted that the results should have been suppressed because (1) the search warrant issued in this case authorized the collection of the sample but not the testing of it, and (2) the sample was not tested within the timeframe set out in Article 18.07 of the Code of Criminal Procedure, which provides in relevant part that a search warrant must be executed within three days after it is issued. The appellate court rejected both contentions. Based on recent precedent from the Court of Criminal Appeals, see Crider v. State, 607 S.W.3d 305 (Tex. Crim. App. 2020), the court concluded “that the terms of a search warrant need not specify that the blood may be collected and subjected to testing and that a second search warrant specifically authorizing testing is not required before blood samples collected under a search warrant can be subjected to testing.” In other words, only one search warrant,
SUPPRESSION OF EVIDENCE – BLOOD DRAWS: Defendant not entitled to suppression of blood-test results even though blood was tested over a month after blood draw. Schneider v. State, 623 S.W.3d 38 (Tex. App.—Austin 2021, pet. ref’d). Schneider was arrested for driving while intoxicated. The arresting officer secured a search
Mediation. Arbitration. Resolution.
not two, is needed to collect and test a blood sample. Additionally, the court followed a recent decision by the 14th Court of Appeals, Ramirez v. State, 611 S.W.3d 645 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d), and concluded that the three-day requirement in Article 18.07 “refers to when the actual search and seizure of the evidence occurs and not to when any forensic analysis of the seized evidence is performed.” Thus, because the blood sample was obtained within three days after the search warrant was issued, the evidence was admissible. JUROR MISCONDUCT: Preexisting relationship between juror and potential witness for State did not entitle defendant to mistrial. Vizcaino v. State, No. 03-19-00800CR (Tex. App.—Austin Mar. 31, 2021, no pet.) (mem. op., not designated for publication). After Vizcaino was found guilty of aggravated sexual assault but before the hearing on punishment, defense counsel informed the district court that the night before the hearing, he had received a text message telling him that Vizcaino’s wife, a potential witness for the State, was seen “hugging a juror.” The court bailiff received a similar message claiming that the juror knew Vizcaino, Vizcaino’s wife, and the victim. The district court questioned the wife and the juror to determine the truth of these allegations.
The wife testified that she knew the juror and the juror’s “whole family,” had grown up with the juror, and was “really good friends with her sister.” The wife further testified that her contact with the juror was limited to a “side hug” at a coffee shop during a break in the testimony, and they had not discussed the case. The juror testified similarly, however she added that her “friendship” with the wife was limited to Facebook. The juror also denied that she knew either Vizcaino or the victim. Defense counsel moved for a mistrial based on the “encounter” between Vizcaino’s wife and the juror. The district court denied the motion for mistrial, and the appellate court affirmed. The court concluded that Vizcaino’s complaint on appeal, which alleged that the juror had withheld material information in the case, did not correspond to his complaint at trial. Moreover, the juror and the wife did not discuss the case, and to extent the juror had withheld information, it was defense counsel’s “obligation to ask questions calculated to bring out that information which might be said to indicate a juror’s inability to be impartial, truthful, and the like.” During jury selection, defense counsel had failed to ask the panel if any of them knew Vizcaino’s wife. The district court also could have concluded that the information was not material because of the limited extent of the relationship between the juror and AUSTINLAWYER L AL Vizcaino’sAwife.
Jeff Rose Mediation Arbitration Litigation Consulting Special Judge Proceedings Board Certified, Civil Trial Law Former: Chief Justice, 3rd Court of Appeals; District Judge; Deputy Attorney General
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FEDERAL CIVIL COURT UPDATE
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The following is a summary of an opinion issued by the U.S. Court of Appeals for the Fifth Circuit. The summary is an overview; please review the entire opinion.
ARBITRATION: Because waiver is evaluated on claim-byclaim basis, defendant waiving right to arbitrate initially pleaded claims does not necessarily waive later-pleaded claims. Forby v. One Techs., L.P., 13 F.4th 460 (5th Cir. 2021). In July 2014, Forby signed up for a free credit report on Scoresense. com, a website operated by One Tech. She entered her credit card information, authorizing a $1.00 charge ostensibly to verify her identity and obtain her report. She had to check a box to agree to the terms and conditions before completing the process. The terms advise that, by enrolling, the user authorizes One Tech to charge their credit card an enrollment fee on a monthly basis until the user cancels. The terms also include in all-caps an arbitration clause. Forby claims she did not realize she agreed to pay the monthly enrollment charge until discovering multiple monthly charges of $29.95. She also claims One Tech ignored her request to be removed from the program. Forby filed a class action lawsuit in Illinois, claiming violations
of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) and also unjust enrichment under Illinois law. One Tech removed the case to the Southern District of Illinois, which transferred it to the Northern District of Texas. One Tech then moved to dismiss for failure to state a claim, arguing that its website was not deceptive, that it did not engage in unfair conduct, and that Forby had at most alleged a breach of contract. The district court granted One Tech’s motion as to Forby’s unjust enrichment claim but denied it as to her ICFA claim. Only then did One Tech move to compel arbitration. The district court granted the motion, but the Fifth Circuit, in an earlier appeal, reversed on appeal, holding that One Tech had waived its right to arbitrate because it “pursued and partially obtained a dismissal with prejudice,” showing “a desire to resolve the dispute in litigation rather than arbitration,” despite being fully aware of its right to arbitration. The Fifth Circuit therefore vacated the order compelling arbitration and remanded. Back in the trial court, Forby was then granted leave to file a second amended complaint. In it she added a new claim under the federal Credit Repair Organizations Act (“CROA”). Forby alleged One Tech violated CROA by, among other things, deceptively offering consumers “free” access to their credit scores without dis-
PATIENT
closing they would be enrolled in a monitoring program for $29.95 per month. One Tech again moved to compel arbitration. It argued that because Forby’s second amended complaint had significantly reshaped and broadened this case, One Tech’s waiver should be rescinded. But the district court denied One Tech’s motion, reasoning that the Fifth Circuit had not adopted the rule, endorsed by other circuits, that a waived arbitration right may be revived if an amended complaint changes the scope of the plaintiff’s claims. The district court also held that, even if that rule were applied, Forby’s second amended complaint did not alter the scope or theory of the litigation in an unforeseeable claim. One Tech again appealed. The Fifth Circuit reversed, holding that One Tech’s prior waiver of arbitral rights does not extend to the federal claims raised for the first time in her second amended complaint. Although a party waives arbitration by substantially invoking the judicial process to the detriment of the other party, the court explained that a party only invokes the judicial process to the extent it litigates a specific claim it subsequently seeks to arbitrate. Because One Tech never tried to litigate Forby’s federal claims, it did not invoke the judicial process as to those claims and, therefore, did LAWYER not waive its right AUSTIN AL AL to arbitrate them.
PRACTICAL
David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico.
PERSISTENT
30 years of trial experience Now mediating all types of cases HargettMediation.com rhargett@rcmhlaw.com 512.660.5960
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CRIMINAL COURT NEWS
One Step Up, Two Steps Back: “Bail Reform” Texas Style BY DAN DWORIN
D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.
G
overnor Greg Abbott declared bail reform a priority for the 87th Legislature in 2021. Abbott got his wish when lawmakers approved Senate Bill 6 during the second called session. Effective Dec. 2, 2021, cashless personal bonds will be prohibited in nearly all felony cases involving violence. At a time when Texas’s biggest counties are facing pressure from federal lawsuits challenging the constitutionality of their bail practices—and after a year of pandemic-induced efforts to reduce the number of defendants held in detention pre-trial—the major impact of the bond-reform bill will be to reverse the progress made to move away from the cash bail system in Texas. The bill requires magistrates who set bonds on new cases to do so within 48 hours of a defendant’s arrest and further mandates that magistrates be provided a basic level of criminal history information on each defendant whose bail they set so that public safety concerns can be adequately addressed. Most 14
AUSTINLAWYER | NOVEMBER 2021
larger counties, such as Travis, which have functional pretrial services departments to assist judges, already provide that information to magistrates. There are also requirements aimed at gathering data on charitable bail funds which exist to help indigent defendants post bail in low-level cases. Advocates for bail reform point to this as an example of the Legislature taking aim at funds that might, for example, help protesters arrested during a rally to post bail.1 According to Twyla Carter, National Director of Policy of the California-based The Bail Project, stated, “[SB 6 is] going to force innocent people to plead guilty, exacerbate racial disparities, will expose counties to costly litigation and actually harm public safety because it is going to result in more people remaining in jail pre-trial before they’ve been convicted of a crime.”2 Since personal bonds can include many conditions such as prohibiting contact with an alleged victim, drug testing, or participation in a sub-
stance-abuse treatment program, it is hard to see how public safety is increased by returning to a reliance on bail bond companies, whose only concern is making sure the defendant returns to court to avoid a costly forfeiture. Media reports indicate that, in response to the nationwide movement towards cashless bail, the insurance industry, which backs bondsmen, increased its lobbying efforts dramatically.3 As many magistrates in small counties are non-lawyer justices of the peace, the bill’s mandatory training might help ensure some semblance of uniformity in bail-setting practices, but curtailing the ability of judges to make individualized determinations of whether an accused can be adequately monitored on a personal bond with conditions— regardless of offense—represents a sharp turn away from the kind of bail reform for which community-based criminal justice groups have been pressing. SB 6 also marks a departure from the practices developed in Texas’s most populous counties by local elected officials. Texas taxpayers
will ultimately decide if the higher costs associated with increased pre-trial detention are worth theLAWYER dance of bail reform AUSTIN AL AL in our state. Footnotes 1. Paul Flahive, Senate Bill 6 Signed Into Law, Cash-Bail Opponents Question Its Impact On Public Safety, Tex. Pub. Radio, Sept. 14, 2021, https://www. tpr.org/criminal-justice/2021-09-14/ senate-bill-6-signed-into-law-cashbail-opponents-question-its-impacton-public-safety. 2. Ibid. 3. Ibid.
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BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Stephanie Abiassi
Oriane Leake
Christina Adkins
Virginia Lentz
Michael Araj
Caroline Nelson
Abigail Block
Monique Noel
Eleanor Bryant
Jessica O'Connor
Caroline Burks
Corinne Perez
John Carlton
Nora Picasso Uvalle
Ana Cowan Bill Davis Phillip Dupre Karen Evertson Gregory Fantin
Cassandra Pillonel Joel Rapaport Clark Reeder
and BA from The University of Oklahoma. (from left) Bhimani Buratti, Khirallah
MOVING ON UP
Wittliff Cutter PLLC continues to expand its litigation practice with the addition of new partner Leah Bhimani Buratti. Bhimani Buratti previously practiced with McKool Smith for over a decade, and her practice focuses on complex IP and commercial litigation. She received her JD from SMU and her BBA
Thompson Coe opened its newest office, located in San Antonio. The San Antonio office will be managed by partner David Khirallah, who joined Thompson Coe in 2017. NEW LOCATIONS
On the heels of Holland & Knight’s August 2021 merger with Thompson & Knight, the two firms have now consolidated the two Austin offices under one physical roof. Holland
Lorraine Garcia
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Matthew Hill
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If you are an Austin Bar member and you’ve moved, been promoted, hired an associate, taken on a partner, or received a promotion or award, we’d like to hear from you. Notices are printed at no cost, must be submitted in writing, and are subject to editing.
Hilary Hunter Kathy Johnson Scott Larson
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& Knight is now located at 98 San Jacinto Boulevard, Suite 1900, Austin, TX 78701. The office consolidation completes the merger between Dallas-based Thompson & Knight into the larger, Miami-based Holland & Knight. McGinnis Lochridge is pleased to announce its Austin office has relocated to a beautiful new building in downtown Austin at 1111 W. 6th St., Ste. 400, Austin, TX 78703. The building once housed the administrative offices for Austin ISD.
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OPENING STATEMENT
Email Memos, Part 2 Research on Reader Preferences BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET
P
art 2 of a three-part series on e-memos reports on Professor Brad Desnoyer’s article E-Memos 2.0, in which he gathered opinions from 113 lawyers on four sample email memos. The samples were written by a junior attorney for a supervising attorney and represented different approaches to organization, analysis, tone, and content. The responding attorneys were in private practices, small to large, and governmental, judicial, corporate, and other jobs. Their ages ranged from under 30 to over 60.1 This column summarizes Desnoyer’s data on e-memo reader preferences, with five key takeaways. 1. READERS RELY ON COMPUTER SCREENS. Nearly 89% of respondents said they read memos on a screen, with 40% saying they read e-memos on a phone.2 We’ve known for a while that screen reading is normal for legal readers, and this data reinforces that reality. Screen readers tend to be more impatient and more distracted than paper readers. So, successful e-memo writers should adapt to those characteristics by being brief, using headings and subheadings, and enabling skimming.3 2. E-MEMOS ARE QUICK-TURNAROUND PROJECTS. Ninety-two percent of respondents said the turnaround time for an e-memo assignment is 48 hours, and nearly half said the typical turnaround is 24 hours.4 As a teacher of beginning legal researchers and writers, that information scares me: The more time pressure you put on novices, the more likely they are to cut corners and make mistakes. But
that’s the reality today. Quick turnarounds are the norm, so legal writers must learn to write better faster.5 3. UP-FRONT CONCLUSIONS NEED REASONING. It’s standard advice in any good textbook on legal writing and in many guides on legal style: You’re not writing a mystery novel with a surprise ending, so spill the beans! Give the bottom line first, plainly and right up front.6 But Desnoyer’s data goes further. Even though an up-front conclusion should be short, it shouldn’t be shallow. Supply reasons, give explanations—clarify the why. But do so concisely. Find twelve tips for concision on my blog, LEGIBLE.7 4. ANALYTICAL DEPTH MATTERS. This concept builds on the previous one. Taken together we can say this: It’s essential that your e-memo be short, but it’s just as important that it be thorough. At this point, we should acknowledge the demanding ex-
pectations supervising attorneys For that reader, the e-memo writoften have of younger attorneys: er should do two things: attach “I want to understand everycopies of the cases and statutes thing, but I don’t want to read cited in the e-memo and, where much.” Or as one senior attorney possible, embed hyperlinks to key put it to me: “I don’t want to sources in the message’s body. have to scroll to understand the Half of the respondents answeranalysis—not even on a phone.” ing Desnoyer’s question about As with the previous point, this hyperlinking said it should be a point suggests that concise writ“common practice.”8 ing is at a premium in e-memos. Next month, the final take(In fact, Prof. Desnoyer’s article AUSTIN aways from Prof. Desnoyer’s LAWYER AL AL on e-memos mentions concision article. and its importance 28 times.) Footnotes 1. Brad Desnoyer, E-Memos 2.0: An 5. ATTACHMENTS AND Empirical Study of How Attorneys HYPERLINKS ARE USEFUL. Write, 25 J. Leg. Writing Inst. 213, 229-236 (2021). Yes, your e-memo should be brief 2. Id. at 259. or, better yet, concise—implying 3. Wayne Schiess, Legal Writing Nerd 45 brevity plus depth. You shouldn’t (2019). include lengthy explications of 4. Desnoyer, at 260. the law, the legal standards, or 5. Schiess, Legal Writing Nerd, at 11. 6. Id. at 25-36. the cases. Instead, get to the 7. Wayne Schiess, All 12 Tips for point: Show how the law applies Concision, LEGIBLE, Jan. 17, to our scenario. 2018, https://sites.utexas.edu/ legalwriting/2018/01/17/all-12So what about the reader who tips-for-concision/. wants to, shall we say, check your 8. Desnoyer, at 258. work? This reader who wants to read the cases you’ve cited, see the full text of the statute you summarized, or examine the verbatim passage you paraphrased. NOVEMBER 2021 | AUSTINLAWYER
19
AUSTIN YOUNG LAWYERS ASSOCIATION
AYLA Community Service Days 2021-2022
T
he Austin Young Lawyers Association Community Service Days Committee kicked off the 2021-22 year volunteering their time at the Lady Bird Johnson Wildflower Center, the Green Corn Project, and We Are Blood. LADY BIRD JOHNSON WILDFLOWER CENTER On Aug. 28, 2021, AYLA volunteers showed up to the Lady Bird Johnson Wildflower Center. Founded in part by Lady Bird Johnson in 1982, the center promotes its mission to inspire the conservation of native plants through its internationally recognized sustainable gardens, education, outreach programs, and research projects. Volunteers showed up bright and early to beat the summer heat to help clear out weeds and spread mulch in the family garden area. Not only did AYLA members volunteer their time, they also got to learn about native plants, bugs, and the different areas of the Wildflower Center. GREEN CORN PROJECT On Saturday, Sept. 25, the Community Service Days Committee was happy to volunteer with the Green Corn Project for one of their dig-in volunteer opportuni-
ties. The Green Corn Project’s purpose is to educate and assist Central Texans in building organic food gardens so that they can have access to nutritious, affordable food. For this dig-in, volunteers helped clean the garden at Rosewood Elementary School and prepare the soil for the students to plant vegetables this fall. WE ARE BLOOD The October Community Service Days event supported the local blood bank, We Are Blood, on Saturday, Oct. 2, 2021. The We Are Blood Bus parked in front CLOCKWISE FROM TOP LEFT: We Are Blood AYLA volunteers: (from left) Blair Leake and Ryan of Hilgers House for Malsbary; Lady Bird Johnson Wildflower Center AYLA volunteers: Callie Haley, Jenna Malsbary, Amy donors to hop on, doBefield, Blair Leake, and Emily Morris; Green Corn Project community volunteers and AYLA volunteers Meghan Kempf, Allison Fink, Wendy Rodriguez, and Jenna and Ryan Malsbary; The We Are Blood nate, and go enjoy the truck arrives, ready for AYLA volunteers to donate much-needed blood. rest of their Saturday. AYLA and Austin Bar members, friends, and family needed. AYLA hopes to have the dinate for the 2022 MLK Day of who were eligible signed up We Are Blood mobile bus back at Service, or have ideas for one of to donate blood and help save Hilgers in January 2022 as part the monthly service volunteer lives. We Are Blood not only of the Twelfth Annual MLK Day events, please email Debbie Kelly AUSTIN LAWYER provides blood to Central Texans, AL AL of Service. at debbie@austinbar.org. but also helps when there are If you would like to join natural disasters or emergencies the Community Service Days nationwide and donations are Committee, help plan and coor-
Divorce and Child Custody Surveillance ~ Undercover Background Checks Computer and Cell Phone Forensics Corporate Invessgaaons Insurance Fraud Expert Tessmony “Informaaon is power, the not knowing is devastaang” 20
AUSTINLAWYER | NOVEMBER 2021
STRICTLY CONFIDENTIAL Anji Maddox
Offices in Austin, Round Rock and Dallas
AUSTIN YOUNG LAWYERS ASSOCIATION
Member Spotlight: Sam Denton AYLA: Tell us a little bit about yourself and your law practice. Denton: I am a native Austinite, third-generation attorney, and former military intelligence officer and lawyer who did a tour in Iraq and missions in the Philippines and Japan. I spent the last three or so years serving as staff attorney for the 459th District Court and the Honorable Maya Guerra Gamble. I am currently proud to be an Associate Corporate Counsel at University Federal Credit Union. My wife and I have a set of four-year-old twins and a two-year-old (collectively, “rascals” or “rapscallions”), all who work to keep us busy and who take turns competing to be the cutest and most troublesome.
AYLA: How long have you been involved in AYLA and what’s been your best AYLA experience so far?
Denton: Astronaut, for sure. Oh, to slip “the surly bonds of earth, and dance the skies on laughtersilvered wings….”
Denton: I joined AYLA right after law school and have been an on-and-off member as I’ve taken different jobs and moved to different places. With respect to my best experience with AYLA, in 2017, I dragged a best friend to an AYLA event to do some networking and he met his future fiancée. AYLA brings good people together. (#MatchMadeInAYLA?) Additionally, I know several of the current AYLA leaders, and they are some of my favorite people.
AYLA: What’s your favorite moment of your career so far?
AYLA: What was your childhood dream job?
DECEMBER
9
TH
6:00 P.M.
I’ve served the state of Texas, the judiciary and citizens of Travis County, the military, service members, retirees and veterans, and now UFCU and its members. I’ve served in a variety of ways and am proud of them all. I’m not sure I can isolate a favorite moment but am glad of the career I chose. AYLA: What are some of the things you enjoy most about living in Austin? Denton: I’m from here and have watched the place grow. Austin has always been an exceptional mixture of folks with a bent towards the outdoors, an active lifestyle, good food, great music, and art. I love that a city slogan is “Keep Austin Weird,” and that two popular pieces of local art stated, “Hi. how are you” and “I love you so much.”
AYLA: What’s your best piece of advice for fellow young attorneys? Denton: Take the leap and get involved in lawyerly organizations. Take a position and contribute as much as you can. You’ll meet great people, earn the solemn pride that comes from service, and the relationships you build can pay future dividends. If you’re looking to get involved, the Austin Bar/ AYLA Leadership Academy (which I’m co-chairing this year) AUSTINLAWYER L AL isn’t a bad place to A start.
UPCOMING EVENTS SAT., NOV. 13 5th Annual Tailgate for a Cause Fundraiser UT vs Kansas State game Time TBD 17th and Brazos
bar & grill
bar & grill Dallas Bar Association
Austin Young Lawyers Association
Join us to raise funds and awareness to benefit AYLA’s community holiday event for underprivileged families, which will be held on Dec. 12, 2021. This year, AYLA will partner with the YMCA to provide toys for children and holiday cheer to families who might otherwise not have that opportunity. In order to ensure this event’s success, financial contributions are essential. And, sponsorships are available. Email Debbie Kelly at debbie@austinbar.org for details. Visit ayla.org for more information. NOVEMBER 2021 | AUSTINLAWYER
21
PRACTICE POINTERS
Pandemic Practice Pointers BY MARY-ELLEN KING sionally and personally. Lawyers should act in a way that advances the best interests of the client and the legal system. How can we do that? Be respectful in our communications with everyone, including colleagues, opposing counsel, and court staff. Return calls or emails promptly. Manage expectations—if you say you’ll do something, do it. Act with civility towards other lawyers, non-lawyers, the judiciary, and the judicial staff, especially during the stressful times. Mary-Ellen King is a partner in the Austin office of Thompson Coe LLP. She practices business, commercial, and insurance coverage litigation nationwide.
T
he pandemic has changed the way we practice law and live our day-to-day lives. As lawyers, we adapted to many challenges as our practices shifted from in-person hearings and meetings to Zoom and virtual courtrooms. Here are a few suggestions for practicing law during the pandemic: CIVILITY Be civil. These times are difficult for everyone, both profes-
PIVOT WITH GRACE If we have learned anything over the last 18 months, it is that things do not always go as planned, especially with technology. Think about your backup plan to manage your stress when technology goes awry on your end and be graceful when it’s not happening to you. Setting a calm and professional tone in difficult situations is the hallmark of our profession, and it is what is best for our clients. PREPARATION Preparation is key! For efficient and effective courtroom and deposition presentation, exhibits should be prepared and labeled in advance and uploaded or
shared according to the local rules. It always takes more time than you think, so do not wait until the last minute. It is important to prepare your clients for Zoom hearings, mediation, and depositions—no driving, no sidebar conversations with family members, no offensive language, no illegal substance use, no background distraction, and no cat profile photos. Have a run-through Zoom meeting with your client to ensure the Zoom profile name is professional, practice mute, explain breakout rooms, tell them who the other participants will be and their roles, practice sitting still and limiting facial expressions. We all know horror stories we have seen or heard of over the last 18 months. They
can mostly be eliminated with preparation. Ultimately, lack of preparation delays the judicial process and distracts from real issues in the case. In many instances, lack of preparation is detrimental to clients. This can all be avoided with advanced preparation for virtual hearings, mediations, depositions, and meetings. WELLNESS CHECK Check in on your colleagues. Make an intentional effort to grab coffee or lunch. Human connection is the key to wellness during stressful times. Check on yourself—sleep eight hours, eat nutritious meals, drink water, schedule doctor appointments, unplug, take a nap, go to the spa, AUSTIN LAWYER go for a run, ask for help,ALetc. AL
You’re busy looking out for your clients’ needs. Who’s looking out for yours? Jim Kaighin, Jr., CFP Financial Professional
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Editor (Name and complete mailing address)
Jennifer Hopgood and Rachael Jones 712 W. 16th Street Austin, TX Travis County, 78701 Managing Editor (Name and complete mailing address)
Sonta Henderson 712 W. 16th Street Austin, TX Travis County, 78701 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
712 W. 16th Street Austin, TX Travis County, 78701
(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 x None Other Securities. If none, check box Full Name
0
0
0
0
0
250 2,152 50 2,202
88.34%
2017 64
2,081
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:
X
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 2021 | AUSTINLAWYER
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