Austin Lawyer, October 2016 by Austin Bar Association

austinbar.org OCTOBER 2016 | VOLUME 25, NUMBER 8

Making a Difference in the Lives of Veterans The Austin Bar Shines as Part of the ABA’s Veterans Legal Services Initiative BY NANCY GRAY, AUSTIN BAR ASSOCIATION

ustin Bar Association member and pastpresident, Jo Ann Merica, recalls a July morning in 2010 when she was driving to the Austin Bar’s first Free Legal Advice Clinic for Veterans. She had no idea what to expect when she arrived. Earlier that spring, she had met with then-Texas State Bar President, Terry Tottenham. Tottenham’s major initiative for his term in office was to provide additional legal services to veterans. He appointed Merica and Travis Sales to co-chair the statewide Texas Lawyers for Texas Veterans committee to carry out the initiative. The Austin Bar quickly responded by forming their own Veterans Project committee with Merica and Randy Howry as co-chairs. Flyers were sent out to local veterans groups and signs were posted at the VA’s outpatient clinic. Volunteer attorneys were lined up, and Merica was on her way to take the early shift that first summer day. DeLaine Ward, executive director of the Austin Bar, had arrived to set up at 7:30 a.m., about half an hour before the clinic was set to open, when she called Merica to find out when she would arrive. “I’m on my way, I should be there in about ten minutes,” Merica said. “Good,” said Ward, “Because there are 70 people

already lined up waiting to see a lawyer!” All visions of complicated intake forms were thrown out the window and Merica, along with a team of lawyers representing all manner of specialty areas, talked to veterans, back-to-back, all day long. The Austin Bar’s Free Legal Advice Clinic for Veterans was born. Since that day, almost 3,000 veterans have been served by the clinic in Austin. This year, the American Bar Association’s President Linda Klein has established the ABA Veterans Legal Services Initiative which is the focus of October’s Pro Bono Month. The Austin Bar is proud to participate by continuing to meet the needs of veterans in Central Texas at its monthly clinic on October 10 at the VA outpatient clinic in Austin. While the veteran population has decreased on a national level, Texas has seen an increase. There are more than 130,000 veterans in Travis and surrounding counties. In August 2016, the clinic expanded beyond Travis County thanks to a grant received from the Texas Access to Justice Foundation. Two clinics were held in Williamson County and another was held in Gillespie County. Now managed by Austin Bar staff attorney Doug Lawrence, the expanded clinics provide high-quality legal assistance to low-income veterans and their families. The assistance comes

A study from the Department of Veterans Affairs says at least five of the top 10 problems leading to homelessness among veterans can’t be solved without legal help.

Jo Ann Merica listens as a veteran discusses his legal issues.

in the form of free legal advice and pro bono representation. According to a July 8, 2016 Washington Post article by Martha Bergmark and Ellen Lawton on veterans and homelessness, nearly 50,000 veterans in the United States currently sleep on the streets. A study from the Department of Veterans Affairs says at least five of the top 10 problems leading to homelessness among veterans can’t be solved without legal help. Providing

medical help, or more beds, often doesn’t solve the root problem facing this population. Many veterans are not receiving the help they need for problems requiring legal assistance such as fighting evictions, upgrading military discharge status, or restoring a driver’s license. As the authors state in the article, “Even something that sounds simple, such as restoring a driver’s license that expired during continued on page 8

CONTENTS

AUSTINLAWYER OCTOBER 2016 | VOLUME 25, NUMBER 8 AL A L INSIDE FEATURED ARTICLES 1

Making a Difference in the Lives of Veterans

How Volunteer Legal Services’ Volunteer Attorneys Saved Christmas for Low-Income Couple Facing Eviction

Texas Advocacy Project to Honor Justice Eva Guzman

Austin Bar to Participate in the 2016 American Heart Association Heart Walk

New Austin Bar Member Benefits

Tax Free No More: Proposed Act Imposes Online Sales Tax

ONLINE

DEPARTMENTS 6 President’s Column 10 Briefs 11 Opening Statement 13 Federal Court Update 14 Minority Bar Spotlight 15 3rd Court of Appeals Update 17 Legislative Update 18 AYLA 20 Social Media Savvy 21 Developing Your Practice 22 Classifieds /Ad Index

NEWS & ANNOUNCEMENTS

EVENTS & MORE

Sculpting the Future: LGBT Bar’s Scholarship Gala

OCT 10 Celebrate Pro Bono Free Legal Advice Clinic for Veterans Austin VA Outpatient Clinic 1:30 – 4 p.m.

Hays, Caldwell and Comal County Bar Associations Hold Bench Bar Conference Register Now for the October 25 Conference

Austin Adoption Day

Austin Bar Hosts 15th Annual Event on November 3

Texas IOLTA Prime Partners

Special thanks to these Austin-area banks

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Fundraising Gala Set for October 13 at Umlauf Sculpture Garden

CONNECTIONS

OCT 28 Members Only 4th Friday CLE Speaker: Jett Hanna, of Texas Lawyers Insurance Exchange RSVP at austinbar.org

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION Leslie Dippel .............................. President Amy Welborn ............................ President-Elect Adam Schramek ....................... Secretary D. Todd Smith ............................ Treasurer Judge Eric Shepperd ............. Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION Katie Fillmore ........................... President Austin Kaplan ............................ President-Elect Jorge Padilla .............................. Treasurer Drew Harris ............................... Secretary Chari Kelly .................................. Immediate Past President

EXECUTIVE OFFICES 816 Congress Ave., Suite 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 Kelli Horan ................................. Editorial Assistant 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., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 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 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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How Volunteer Legal Services’ Volunteer Attorneys Saved Christmas for Low-Income Couple Facing Eviction BY REBECCA LIGHTSEY, INTERIM EXECUTIVE DIRECTOR - VOLUNTEER LEGAL SERVICES “

ou see that right there? Dismissed with prejudice.” Vernon Payton’s voice trembles with emotion when he reads the final words of the court order hanging on the wall of his living room like a family photo. Thanks to that order, Vernon and his wife, Ernestine, have the right to remain in their rent-subsidized apartment where they have lived for more than a decade. Luckily for the Paytons, their poverty was not a barrier to justice because of help from Volunteer Legal Services’ (VLS) pro bono lawyers. While they live in peace now, previously, the Paytons lived in constant fear of losing their home due to a barrage of threats by their landlord. The final straw came after being served with an eviction suit only days before Christmas. Even though the Paytons knew they were in the right, they were terrified of defending their case without

host walk-in legal clinics where the Paytons discovered they were eligible for help. VLS turned to Tecuan Flores, a Baker Botts IP associate to defend the Paytons. Flores recruited his colleague and former law school classmate, Sarah Coleman, to help. Coleman, a corporate finance lawyer at Baker Botts, described her reaction, “I wasn’t sure at first. I’m not a trial lawyer. But I had talked to Flores about other work he had done with VLS and I knew VLS offered a lot of support to their volunteers, so I agreed to do it. I’m glad I did.” Flores and Coleman filed a response to the eviction suit and much to everyone’s surprise, the apartment complex dismissed the case “without prejudice.” Less than a week later, however, Vernon learned the importance of “prejudice” when the apartment complex filed another eviction case. Eventually, the landlord lost that suit, and lost again on appeal. In

“As we got to know the Paytons better, we loved working with them,” Flores says. “They always kept us laughing and smiling.” And, the Paytons were extremely grateful. legal representation. Vernon’s and Ernestine’s frail health and meager income made homelessness an especially dangerous possibility. Fortunately, the couple turned to VLS for help. VLS partners with Texas Rio Grande Legal Aid to

total, Flores and Coleman conducted three separate trials and scored three victories for the Paytons. “As we got to know the Paytons better, we loved working with them,” Flores says. “They always kept us laughing and smiling.” And, the Paytons were

TOP: Vernon and Ernestine Payton; ABOVE: Vernon and Ernestine Payton proudly show their court order, with their volunteer Baker Botts attorneys Tecuan Flores (left) and Sarah Coleman (right).

extremely grateful. “[VLS] brought out the best,” Ernestine said with a big smile across her face, “I felt confident we would win because I knew [Flores and Coleman] were fighting for us.” Baker Botts, a longstanding partner of VLS, fully supported the time and resources Flores and Coleman devoted to the case. In 2015 alone, Baker Botts’ lawyers donated 25,947 hours of pro-bono work firmwide, with over half of the firm’s attorneys contributing to that total. “Pro bono work is not just talk at Baker Botts,” says Coleman. After the final trial in county court, Flores and Coleman drove out to the see the Paytons and deliver the good news. “Flores handed the court order to Vernon,” Coleman recalled. “Vernon read it out loud, and he immediately noticed the

bottom where it said ‘with prejudice’. They were crying. I was crying. Ernestine fell on the couch and said ‘I can finally sleep again!’ It was incredibly rewarding.” “We smiled the whole way back to our office,” Flores adds. Both Flores and Coleman say winning the Paytons’ case was the highlight of their year. The Paytons agree. In 2015, VLS represented clients in more than 500 cases, thanks to the collective hard work and generosity of its dedicated volunteers. VLS thanks their volunteers for sharing their hearts and donating their skills and resources to ensure access to justice for Austin’s low-income residents. If you are interested in learning more about volunteering for pro-bono with VLS, please call AUSTINwork LAWYER 512.476.5550. AL AL

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PRESIDENT’S COLUMN LESLIE DIPPEL, ASSISTANT TRAVIS COUNTY ATTORNEY

Texas Lawyers Creed (Part 2): Can We Be Adversaries Without Being Adversarial? LAST MONTH, I wrote about the Texas Lawyers Creed and how reading it at least once a year, if not more, completely shapes the way I approach the practice of law. It is a reminder of the civility we owe one another, and maintains the ideal of our occupation remaining a profession rather than an adversarial and antagonistic exercise. This is another one of my favorite passages from the Lawyer’s Creed: “I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.” While it may be hard for some of you to “abstain from any allusion to my personal peculiarities”, this is quite a statement! What a dignified approach to our daily work—to assume the best in people. It can be very easy to fall into the trap of the opposite approach. Overall, aren’t we blessed to have the community of lawyers we have in Austin? I am sure you have heard the saying about breaking bread: it is difficult to maintain

AUSTINLAWYER | OCTOBER 2016

an acrimonious relationship with someone after having shared a meal. Membership in a practice area section of the Austin Bar provides just that opportunity. My first supervising partner was involved in creating the first employment law section of the Austin Bar. She told me their goal was to bring both sides of the employment bar together for monthly functions to help foster camaraderie. It created harmony, friendships, and the certainty that lawyers could be adversaries without being adversarial. For me, Phil Durst is an excellent example of this ideal. I first met Phil through the employment section. When we have had the pleasure of

working together on a case, it is a wonderful experience—exactly as it is supposed to be. We make each other better lawyers. Thank you for that, Phil. When I attend a section meeting, it is a pleasure to see my brothers and sisters on the other side of the bar. It helps us maintain a level of friendship and professionalism that can only have a positive impact on us personally, our current and future cases, and our clients. If you have not joined a practice area section, now is the perfect time to plug into the Austin Bar and meet, learn, talk, and share with your fellow practitioners. Come join us, AUSTIN LAWYER it’s only lunch! AL AL

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Making a Difference in the Lives of Veterans continued from cover

service—essential for applying for much-needed resources that can keep veterans off the streets— may require the help of a lawyer, particularly if the veteran has other unresolved legal issues.” Merica and the other volunteer attorneys at the Austin Bar’s Free Legal Advice Clinic for Veterans have seen these, and other, issues first-hand. While many problems facing veterans are simple and can be resolved through legal advice given in the typical one-and-a-half to two-hour volunteer shift at the clinic, others are more complicated. Volunteer attorneys aren’t obligated to take on pro bono cases as a result of their work at the clinic, but many do. Most cases are clear-cut and require very little time and effort on the part of the attorneys, while still making a tremendous impact on the lives of veterans and their families. Thinking she was taking on one such case, Merica agreed to help Emily Vorland, a former Army lieutenant. Vorland met Merica in the summer of 2011 when she walked into the Austin Bar’s Free Legal Advice Clinic for Veterans seeking help with a discharge upgrade. She brought a notebook of documents with her detailing her case. Merica remembers meeting Vorland for the first time, saying, “She was this tall,

cluded she engaged in misconduct. The officer was transferred and she was given a general discharge. Vorland recalled, “After fighting my case in the military from 2009 to the end of 2010 when I was discharged, attending the Austin Bar’s Veterans Clinic was the FIRST sense of relief I felt since the day the ordeal started. It was the first sign of hope that maybe this fight was worth it. For a veteran seeking legal services, having a professional listen to their story and be willing to help, can turn everything around. It can take a veteran out of a dark place and give them hope for change. Just knowing someone believes you and is willing to listen can mean a lot to someone who has been fighting an uphill battle against an overwhelming entity.” Merica agreed to represent her pro bono. She appealed Vorland’s discharge and in 2013, the two attended a hearing in Dallas before a discharge review board. Merica never dreamed they would lose. And she certainly never dreamed she would witness the review board treating her and her client with hostility and disrespect. Vorland was devastated. Following the board’s rejection, Vorland became involved in a group called “Protect Our Defenders,” a national organization dedicated to

. . .soldiers (both active duty and veterans) don’t always have access to proper legal services the same way a civilian would since the military legal system is set up differently. attractive, athletic, smart, young woman. She should have been one of the Army’s best assets.” As Merica read the report and learned what had happened in the field, she was stunned. “She could have been my daughter or my sister. She could have been me,” said Merica. Vorland had been sexually harassed and propositioned by a senior officer. She had been required to report the harassment and an investigation ensued. In the course of the investigation, the focus shifted away from the married senior officer and on to her. Somehow, even though there were witnesses and much detailed documentation to support her case, the investigation team con8

AUSTINLAWYER | OCTOBER 2016

ending the epidemic of rape and sexual assault in the military and combating a culture of pervasive sexual harassment and retribution against victims. Shortly thereafter, Human Rights Watch did a report titled Booted: Lack of Legal Recourse for Wrongfully Discharged US Military Rape Survivors, which investigated how discharge upgrades for service men and women who had been sexually harassed or assaulted were being handled. Their report, which featured Vorland’s case among others, drew national attention when they found the discharges were not being upgraded or fairly reviewed by the people sitting on the review panels. Time Magazine and NPR

LEFT: Army Lieutenant Emily Vorland; RIGHT: Vorland speaking in Washington.

ran with the story, and Vorland and Merica were featured in an in-depth article published by Time Magazine on May 18, 2016. Later that week, Vorland testified before Congress resulting in a Fairness for Veterans amendment being included in the National Defense Authorization Act for 2017, which gives liberal consideration for characterization upgrades to those who have suffered PTSD because of combat and/or military sexual trauma. About two weeks after the media coverage, Vorland was informed by the Board of Correction of Military Records that her discharge upgrade was under consideration again. She is still awaiting their final decision while also preparing for federal court. It’s been a long road for Vorland in the more than five years since she first walked into the Austin Bar’s Free Legal Advice Clinic for Veterans. And Merica has been with her through it all. “What I’ve learned from this,” said Merica, “is advocacy takes many forms. It goes beyond what we as lawyers normally do in hearings and appeals. In hindsight, I’m glad this case took the path it did, because we’ve had an impact on so many cases besides Emily’s.” When asked what she would say to an attorney who might be on the fence about giving their time to the veterans clinic or taking on a pro bono case, Vorland replied, “What civilian lawyers need to realize is soldiers (both active duty and veterans) don’t always have access to proper legal services the same way a civilian would since the military legal system is set up differently. For instance, Judge Advocate General’s Corp (JAG) supports the

unit and doesn’t always advocate for the soldier. Trial Defense Services and Inspector General are available, but many times the responsibility is placed on the soldier to represent themselves, which can be an arduous task given that most soldiers are not familiar with Uniform Code of Military Justice and don’t stand a chance against military legal representatives or improper command influence, as with my case.” She went on to cite the Human Rights Watch report, which found veterans with “bad paper discharges” are twice as likely to commit suicide as a veteran with favorable discharge paperwork. A lawyer she met in Washington D.C. reported to Congress that her organization was rushing to train lawyers on how to handle military discharge upgrades because veterans were committing suicide as they waited to be represented. “It’s an unfortunate reality,” she said. “I wish every attorney realized how personally rewarding it can be to use the power and privilege of their law license to help somebody who doesn’t have that same type of advantage,” said Merica. Whether an attorney has only a couple of hours to give at each monthly clinic, or time to take on a pro bono case, the need is great. Contact Doug Lawrence at doug@austinbar.org to learn more AUSTINLAWYER about participating. AL AL

Texas Advocacy Project to Honor Justice Eva Guzman 10th Annual Black & White Ball to be Held October 28

stablished in 1982 as a non-profit, Texas Advocacy Project’s mission is to prevent domestic and dating violence, sexual assault, and stalking throughout Texas through free legal services, access to the justice system, and education. The Project’s vision is for all Texans to live safely in hope, not fear. In 2015, the Project provided legal services in 5,560 cases, serving 13,430 Texans. In addition, the Project provided training resources

to 1,614 judges, prosecutors, crime victim services personnel, legal advocates, medical professionals, educators, and others. The Project also assisted 4,712 clients and their children with a range of services such as safety planning and help in accessing Crime Victims’ Compensation. Texas Advocacy Project will host its 10th annual Black & White Ball at the JW Marriott Austin at 7 p.m. on Friday, October 28. The annual event allows the Project to honor

As the Supreme Court of Texas Liaison to the Texas Access to Justice Commission, Justice Guzman works diligently to expand access to justice in civil legal matters for low-income Texans, many of whom are the very people Texas Advocacy Project serves.

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community leaders who embody its mission. The 2016 Honorees include: Texas Supreme Court Justice Eva Guzman, Vision Award; Hailey Solis, Courage Award; and Stephanie and Caroline McKenzie, Generosity of Spirit Award. The Vision Award recognizes a leader committed to ending power-based personal violence in Texas. This year, the Project is pleased to honor Justice Eva Guzman. Justice Guzman has served on the Justice Eva Guzman Supreme Court of Texas since 2009, where she champions the rights of marginalized and underserved Project’s inaugural Teen Ambassacommunities. As the Supreme dors of Hope Campaign. Court of Texas Liaison to the Texas In addition to the awards, the Access to Justice Commission, event will feature a plated dinner, Justice Guzman works diligently live music by Dark Blonde, and one to expand access to justice in civil of Austin’s most exciting auctions. legal matters for low-income Texans, Premiere Events and The Floral many of whom are the very people Studio will transform the ballroom Texas Advocacy Project serves. into a starry night to remember. Justice Guzman chairs the Court’s Premium sponsors include Permanent Judicial Commission Accenture (Title Sponsor); USA for Children, Youth, and Families, Compression; Ranger Excavating; working with leaders across the Kelly Hart & Hallman; Grant state to improve outcomes for TexThornton; Deloitte; Allstate; Luther as’s most vulnerable children and King Capital Management; and the families. Through these efforts and Division of Diversity and Communimore, Justice Guzman has expanded ty Engagement at The University of access to justice for all Texans. Texas at Austin. The Courage Award recognizes “Accenture is proud to support a survivor who has demonstrated The Project’s mission of providing the courage to escape her abuser free legal solutions and access to and create a healthy, productive, justice to victims of domestic and and secure life. Now a sophomore dating violence, sexual assault, and in high school, young Hailey Solis’s stalking across Texas,” said Tom story illustrates that abuse is not Pettit, who leads Accenture’s public bound by age and highlights the efsector work in Texas. “The Black & fectiveness of legal solutions—and White Ball annually helps refocus protective orders specifically—to the community on an enduring stop the violence. She wants others challenge, and we greatly apprewho suffer to know there is hope ciate those who join Accenture in through Texas Advocacy Project. supporting the cause.” The Generosity of Spirit Award Select sponsorships are still recognizes an individual or family available at TexasAdvocacyProject. who has had a significant impact on AUSTIN LAWYER org/events. the Project through volunteerism, AL AL contributions as a fundraiser, or major contributions to our programming. For more than nine years, Stephanie McKenzie has shared her talents and treasure with the Project while serving on the steering committee of the Black & White Ball. While interning for the Project, her daughter, Caroline, drafted by-laws to establish a teen dating violence awareness club at Vandergrift High School. She also participated in the OCTOBER 2016 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Joe Allen Kirk Altman Amanda Byrd

Fillmore, Mackey, Munselle, Skrabanek, and Thomas

Mary Fry Charles Galindo Manpreet Gill Tiffany Haas Matthew Hendrix Erin Leake Jonathan Lozano Charlie McNabb Guillermo Ochoa-Cronfel John Padalino Matthew Pena Ethan Ranis Jack Simms Jennifer Smith

AWARDS Ross Spencer Garsson and Darrell R. Windham of Dickinson Wright were recognized in The Best Lawyers in America 2017 list. Garsson focuses on patent law and Windham focuses on corporate law, and mergers and acquisitions. Sherine E. Thomas, Director of Civil Litigation at the Travis County Attorney’s Office, received the Texas District and County Attorney’s Association “Gerald Summerford Civil Practitioner of the Year Award.”

NEW TO THE OFFICE Becca Kennedy was named the newest partner of McCullar Gilbreath. Kennedy focuses on family law and is an expert in cases

involving divorces, property enforcements, custody matters, child support, prenuptial and postnuptial agreements, and protective orders. Katie Fillmore has joined the Austin office of Butler Snow. Fillmore’s background is in product liability defense litigation, regulatory law, and government relations. Lloyd Gosselink Rochelle & Townsend announced the hire of Lauren R. Munselle. As a member of the firm’s Employment Law and Litigation Practice Groups, Munselle will focus on providing employers with practical day-to-day compliance advice and representing employers in litigation.

Moody. Mackey focuses on corporate and securities law. The Snell Law Firm hired J. R. Skrabanek as senior litigation counsel. Skrabenk’s practice will focus on business and civil litigation including contract disputes, shareholder or partner disputes, business torts, unfair competition and other torts, real estate litigation, construction litigation, and plaintiffs’ class action litigation.

Shana M. Mackey has joined Graves, Dougherty, Hearon &

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OPENING STATEMENT

Microsoft Word Tips for Lawyers (PC) Part 2 BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

ere’s part two of my advice for using Microsoft Word effectively and for making it do what you want. I welcome your suggestions here: wayne@legalwriting.net

8. Align text using indentation. You sometimes need indented text or a “hanging indentation.” The first line of text is indented, and subsequent lines in that paragraph are also indented, creating vertical alignment. Not this: 1. The text in this numbered element is not properly aligned. It reflects poor alignment. But this: 1. The text in this numbered element is properly aligned. It reflects appropriate alignment.

Some writers create alignment by hitting enter at the end of each line and tabbing or spacing over. Don’t create alignment by hitting the tab key or the space bar over and over. Push text left and right with the Decrease Indent and Increase Indent buttons in the Paragraph section of the Home tab. Or use the Left Indent and Hanging Indent markers on the Ruler. To display the Ruler, on the View tab, in the section for Show, check the box for Ruler. 9. Use a zero-width space. Some long URLs get pushed to their own line of text because Word can’t find anywhere to break them. The “zero-width space” or “no-width optional break” allows Word to apply a line break as if there were a space, but no space is visible. For example: Not this: One legal-writing teacher offers some tips for new lawyers. Wayne Schiess, Advice to a New Lawyer, (January 26, 2016), available at http://sites.utexas.edu/legalwriting/2016/01/26/advice-to-a-new-lawyer/ Notice the gap after “at”? You can fix this by inserting a zero-width space after the slashes in the URL. But this: One legal-writing teacher offers some tips for new lawyers. Wayne Schiess, Advice to a New Lawyer, (January 26, 2016), available at http://sites. utexas.edu/legalwriting/2016/01/26/advice-to-a-new-lawyer/ Go to Insert > Symbol > More Symbols > Special Characters and select “no-width optional break.” Keystroke: alt + 8203 on the numeric keypad. 10. Edit and delete document properties. The document properties reveal information about the document: creator, dates, times, total minutes spent on various tasks, and so on. When you send a Word document by e-mail attachment, do you want all that information included? If not—

Acceptable: Correct:

343-44 343–44

The en dash, the “correct” mark, is longer than the hyphen, but my point here is that in MS Word, the word-count function treats the two marks differently: With a hyphen, this is one word: With an en dash, this is two words:

343-44 343–44

Same with the en dash that joins co-equal terms: With a hyphen, this is two words: With an en dash, this is three words:

Taft-Hartley Act Taft–Hartley Act

So you get a 50 percent word-count savings with the hyphen. In a lengthy brief subject to a word count, you could save some words by using the hyphen. 12. Be aware of how MS Word counts the ellipsis. Have you ever noticed the difference between the ellipsis symbol (…) and The Bluebook’s prescribed ellipsis (. . .), which is three periods with spaces? For example: The Bluebook: Ellipsis symbol:

A claimant seeking . . . must show A claimant seeking … must show

In Typography for Lawyers, Matthew Butterick disparages The Bluebook’s approach to the ellipsis. You probably never gave it much thought, but in MS Word, the word-count function treats the two forms differently.

With periods and spaces, this is three words: ... With the ellipsis symbol, this is one word: … Go to File > Info and in the Inspect Document section, click on the dropdown for Check For Issues. Now click Inspect Document and then, at the You save two words every time you use the symbol instead of periods and AUSTINLAWYER bottom of the Document Inspector window, click on Inspect. The results will spaces. AL AL show in the Document Inspector window. Near the top, in the section called Document Properties and Personal information, click Remove All. 11. Be aware of how MS Word counts en dashes. According to reliable style manuals, writers should use the en dash, not the hyphen, for number spans. For example:

OCTOBER 2016 | AUSTINLAWYER

Austin Bar to Participate in the 2016 American Heart Association Heart Walk Join the Team October 15

he Austin Bar will help the American Heart Association with its mission to build better lives, free of cardiovascular diseases and stroke by raising funds and walking in the 2016 Heart Walk on Saturday, October 15, 2016. A 5K run will be held in addition to the walk. Last year, the Austin Bar raised $9,885 in the Heart Walk with 13 sections participating and raising money. The goal for this year has been set at $15,000. The Fitness Committee is sponsoring a FitBar team for those who don’t have a section team to participate with. All teams are open to anyone who wants to walk or run—kids, friends, family, and neighbors can participate. All donations and participants are welcome. The walk is free, but the 5K run requires a $40 registration fee, which goes towards the team fundraising goal.

AUSTINLAWYER | OCTOBER 2016

You can join one of the Austin Bar teams or donate online. Search for “2016 Heart Walk Austin” and click on “Find a Company” to locate the Austin Bar teams. Look for more information in Bar Code about participating in the 2016 Heart Walk. Did you know? • Heart diseases is the No. 1 killer in America. • About 600,000 people die of heart disease in the US every year—that’s one in four deaths. • Each year, and estimated 785,000 Americans will have their first heart attack. • Every 39 seconds, someone dies from a heart attack. • More than one in three female adults have some form of cardiovascular diseases. • Stroke kills 128,000 people per AUSTIN LAWYER year—one in every 19 people. AL AL

2016 Austin Heart Walk

Saturday, October 15th The Long Center Event Opens at 8AM - Walk & Run Kick off at 9AM Sponsor Booths - Kid’s Zone - Health Screenings Timed 5K with $40 registration fee - FUN for all!

AustinHeartWalk.org

FEDERAL COURT UPDATE court found that the Austin Division was just as convenient to the parties and witnesses as the Waco Division, and denied the motion to transfer venue.

The following are summaries of selected civil opinions issued by the U.S. District Court for the Western District of Texas during August 2016. These summaries are intended as an overview only, and counsel are cautioned to review the complete opinions. Subsequent histories are current as of September 6, 2016.

CIVIL PROCEDURE: Venue transfer from Austin to Waco denied in § 1983 action arising from 2015 Twin Peaks motorcycle club shooting incident. Bucy v. Stroman et al., No.1-15CV-010040 (W.D. Tex. Aug. 23, 2016). In one of eight essentially identical suits against the Waco police chief, a Waco police officer, and the McLennan County district attorney, plaintiff sued for wrongful arrest, violation of his Fourth and Fourteenth Amendment rights, and conspiracy to deprive him of those constitutional rights. After a shooting incident at a Waco Twin Peaks restaurant on May 17, 2015, Waco police arrested 177 people, including plaintiff, based on a single affidavit, which plaintiff alleges was insufficient to support his arrest. Defendants moved to transfer venue from the Austin Division to the Waco Division for convenience under 28 U.S.C. § 1404(a). The

L eGisla

CONSTITUTIONAL LAW: Federal Airline Deregulation Act does not preempt Texas Workers’ Compensation Act’s reimbursement limitations or balance-billing prohibition. Air Evac EMS, Inc. v. State of Texas, ex rel. Dep’t of Ins. Div. of Workers’ Comp. et al., No. 1:16-CV00060, (W.D. Tex. Aug. 11, 2016). In a declaratory judgment action alleging federal preemption, an air ambulance company claimed certain provisions of the Texas Workers’ Compensation Act (Tex. Labor Code §§ 401.001-401.026) that limit the amounts it can charge for its services were preempted by the federal Airline Deregulation Act (49 U.S.C. § 41713(b)(1)). Defendants moved to dismiss. The court held that, although it had subject-matter jurisdiction, neither the Supremacy Clause nor the Declaratory Judgment Act (Tex. Civ. Prac. & Rem. Code §§ 37.001-37.011) provided an independent cause of action and the Ex parte Young exception to sovereign immunity did not apply. Plaintiff’s claims were dismissed.

ure IS

C oming

CONTRACT LAW: Dismissal with prejudice is appropriate equitable remedy for plaintiffs’ breach of settlement agreement. Shepherd et al. v. Wells Fargo Bank, Nat’l Ass’n, No. 1:15-CV-00358-RP (W.D. Tex. Aug. 19, 2016). Parties entered a settlement agreement for a discounted mortgage loan payoff and rescission of foreclosure. The agreement provided, inter alia, that plaintiffs would dismiss their suit for wrongful foreclosure and breach of contract. Despite two extensions, Plaintiffs failed to deliver the payoff amount as agreed. Defendant moved to dismiss the wrongful foreclosure suit pursuant to the terms of the settlement agreement. The court determined it could not enforce the settlement agreement in full as agreed by the parties due to plaintiffs’ breach, and thus elected to treat the case as an action for breach of contract. The court held the defendant was entitled to specific performance, and dismissal with prejudice was an equitable remedyLAWYER for plaintiffs’ breach of the AUSTIN agreement. AL AL

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

Are You Ready for Battle?

Meet your firm’s new Legislative Advocacy Section. Contact us today for contract rates ! Single Issue ! Bill Monitoring ! or Full Legislative Consulting Service Packages

Shannon P. Meroney

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-‐ AYLA Past President -‐ Austin Bar Foundation Board Member -‐ 22 yrs legal / 13 yrs legis. experience -‐ Voted “Top 5 Lobbyist to Hire in Texas to Kill a Bill" – The Capitol Crowd 2015 -‐ Ranked among the Top 100 Hired Gun Lobbyists – Capitol Inside 2015

OCTOBER 2016 | AUSTINLAWYER

MINORITY BAR SPOTLIGHT

2015 Diversity Report Card Results Announced

n what has become an annual tradition, the Austin Affinity Bar Associations— comprised of the Hispanic Bar Association of Austin, the Austin Black Lawyers Association, the Austin Asian American Bar Association, the South Asian Bar Association of Austin, and the Austin LGBT Bar Association— have issued the Austin Law Firm Diversity Report Card. This year, for the first time, the Austin Affinity Bar Associations partnered with Travis County Women Lawyers Association to include data on the hire, retention, and promotion of women at major law firms in the Austin, Texas area. The result is a more robust report card that outlines both racial and ethnic diversity, as well as gender diversity within the Austin legal community. Eleven law firms earned an “A” grade for their exceptional minority recruitment, hiring, retention efforts, and results. Those firms are as follows:

• • • • • • • •

Andrews Kurth; Baker Botts; Duggins Wren Mann & Romero; The Fowler Law Firm; Gardere Wynne Sewell; Husch Blackwell; Jackson Walker; Lloyd Gosselink Rochelle & Townsend; • Thompson, Coe, Cousins & Irons; • Vinson & Elkins; and • Wilson Sonsini Goodrich & Rosati. The Diversity Report Card Committee recognizes those law firms who participated in the Austin Bar Association’s Diversity Fellowship Program by allowing firms to include minority summer clerks in their report to the Committee. This data was included in the overall score of each participating law firm, and therefore is reflected in the law firm’s final grade. The Diversity Fellowship Program is a 10-week fellowship to enable firstyear law students of the University of Texas School of Law to partici-

The Diversity Fellowship Program is a 10-week fellowship to enable first-year law students of the University of Texas School of Law to participate in law firm, governmental, and judicial summer internships. . . The goal of this program is to achieve diversity and inclusion. pate in law firm, governmental, and judicial summer internships. The students are competitively selected by the Austin Bar Association Diversity Committee and spend the first five weeks of the program as interns with the state district court judges before joining a law firm for the second five weeks. Students receive a $5,000 stipend from the Austin Bar Foundation funded by the participating firms. The goal of this program is to achieve diversity and inclusion. The firms who participated in the

Austin Bar’s Diversity Fellowship Program in 2015 are as follows: • • • •

McGinnis Lochridge; Munsch Hardt Kopf & Harr; Locke Lord; Lloyd Gosselink Rochelle & Townsend; • Jackson Walker; • Graves Dougherty Hearon & Moody; and • Armbrust & Brown. To view the full report, visit austinblacklawyers.org/ AUSTINLAWYER diversity-report-card-results. AL AL

New Austin Bar Member Benefits Free Online CLE and Video Streaming Now Available

library of free online CLE videos for Austin Bar members can be found at austinbar.org. Located under the “For Attorneys” tab is a section of password-protected CLE videos. Austin Bar members may use the code “ABarCLE2016” to access the videos. In order to receive CLE credit, fill out the form on the website and submit. More free CLE videos will be added to the library over the course of time. Check back often to see the latest additions.

Other discounted online CLE is available at CLEonline.com. CLEonline.com delivers highquality, online CLE seminars at a discount to Austin Bar members. Members receive 30 percent off all Austin Bar CLEs. Contact Isabel Salazar for details on how to receive the discount. For those who can’t get downtown for the Members Only 4th Friday CLE, there is now an option to livestream the presentation on Periscope. Download Periscope from the app store to your mobile device, create

For those who can’t get downtown for the Members Only 4th Friday CLE, there is now an option to livestream the presentation on Periscope. 14

AUSTINLAWYER | OCTOBER 2016

a Periscope account, and follow the Austin Bar at @austinbarassociation. To get credit for a livestreamed CLE, please email Isabel with your

Periscope handle and barcard number prior to the event. Questions?AUSTIN Contact Isabel SalaLAWYER zar at isabel@austinbar.org. AL AL

3 RD COURT OF APPEALS UPDATE enforce or clarify a property division is made by filing a separate lawsuit from the original divorce proceeding. Thus, ex-wife’s motion to clarify initiated a new suit that required both parties to agree to the referral. Ex-husband had no adequate remedy by appeal when forced into a forum in which he has the right not to litigate. The court granted mandamus relief.

The following are summaries of selected Third Court of Appeals’ civil opinions issued during August 2016. The summaries are intended as an overview; counsel are cautioned to review the complete opinion. Subsequent histories are current as of September 7, 2016.

ORIGINAL PROCEEDING: Court grants mandamus relief when trial court refers case to special judge. In re Turner, No. 03-16-00367CV (Tex. App.—Austin August 9, 2016, orig. proceeding). The parties agreed to have their divorce trial assigned to a special judge under CPRC chapter 151. The special judge conducted the trial and signed a judgment that the trial court adopted. Ex-wife later filed a motion to clarify the property division and a motion to refer the matter back to the same special judge. The trial court granted the referral over ex-husband’s objection. According to the court of appeals, a request to

Maitreya Tomlinson

PUBLIC INFORMATION ACT: Agency’s internal investigation not confidential. Paxton v. Texas Dep’t of State Health Servs., No. 03-14-00594-CV (Tex. App.—Austin August 31, 2016, no pet. h.). A Department employee filed a complaint against another Department employee. The OIG investigated, but found no substantiated misconduct. Both employees filed open-records requests, seeking the investigation materials. Department declined to produce them. The AG determined the information must be disclosed. The trial court concluded the information was excepted from disclosure. According

D. Todd Smith

Laura P. Haley

Smith Law Group was founded by appellate specialist D. Todd Smith, Treasurer of the Austin Bar Association for 2016-2017 and a Life Fellow of the Austin Bar Foundation.

Handling Civil Appeals and Supporting Trial Counsel Statewide 512.439.3230 W W W. A P P E A L S P L U S .C O M

to the court of appeals, confidentiality only applies to OIG audits and investigations concerning fraud, waste, and abuse in the provision of health and human services, not simply to an OIG “investigation.” The court reversed and rendered judgment that the requested information was not confidential. ADMINISTRATIVE LAW: Immunity bars request for injunctive relief. Crystal Int’l, Inc. v. TCEQ, No. 0316-00008-CV (Tex. App.—Austin August 10, 2016, no pet. h.) (mem. op.). Crystal failed to respond to TCEQ’s notification of administrative violations. TCEQ issued a default order assessing a monetary penalty and revoking Crystal’s fuel delivery certificate. Crystal filed suit for judicial review and requested injunctive relief to mandate that TCEQ renew Crystal’s delivery certificate. The trial court granted TCEQ’s plea to the jurisdiction. The court of appeals determined that TCEQ actions on certificate applications were discretionary and not ministerial. The certification statute requires TCEQ to review applications for compliance with underground storage tank regulations and involves deliberation and judgment. TCEQ had discretion to refuse Crystal’s application until it paid the penalties. Accordingly, immunity bars any request to compel TCEQ to renew a certificate. The court affirmed. REAL PROPERTY: Court enforces will’s creation of a conditional life estate. Martin v. Brown, No. 03-15-00492CV (Tex. App.—Austin August 25, 2016, no pet. h.) (mem. op.). Husband’s will left wife certain property during her lifetime or until she “fail[s] to occupy” the property. If wife ceased to occupy the property, then it passes to husband’s children. Children sued for a declaration that they owned the property because wife never occupied it. Wife contended she occupied the property by renting to a tenant. The trial court declared wife occupied the property. The court of appeals concluded the testator’s use of “occupy” defeated wife’s argument that she had a life estate regardless of her use of the

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

property. According to the court, “occupy” means continued physical presence. Wife’s renting the property relinquished her use and occupancy. The court reversed and rendered. The dissent concluded the majority added language by interpreting “occupy” to mean AUSTIN LAWYER AL AL personally occupy. OCTOBER 2016 | AUSTINLAWYER

Tax Free No More: Proposed Act Imposes Online Sales Tax BY AMY L. K. WILLS

tates have been concerned with the loss of revenue from online sales for some time.1 To combat this perceived issue, a bi-partisan group of Senators introduced the Marketplace Fairness Act.2 According to the Act’s official website,3 it would allow states to compel online and catalog sellers (“retailers”) to collect sales tax no matter the seller’s brick-andmortar location. The website asserts that the Bellas Hess4 and Quill5 decisions are outdated. Each decision held that delivery of purchased goods by common carrier or mail did not create nexus with the state for taxing purposes. The “old” argument is that a retailer needed a physical presence in the state for taxing purposes to prevent burdening the retailer with “unjustifiable local entanglements.”6 But with recent technological advances, the Act’s supporters argue that this burden no longer exists.7

THE ACT’S REQUIREMENTS The Marketplace Fairness Act allows states to require qualifying8 sellers to collect and remit sales tax for online sales.9 There are two ways a state can obtain authorization to impose this requirement. Under the first option, a state can adopt the Streamlined Sales and Use Tax Agreement provisions.10 The Agreement’s purpose is to “simplify and modernize sales and use tax administration.”11 To implement that purpose, the Agreement provides simplified taxing measures, such as requiring each member state to provide an online registration system that allows sellers to register in all member states.12 Under the Act, a state has authority to collect sales tax from online retailers when it has full member status and is in compliance with the Agreement.13 Under the second option, a state can adopt the following “simplification mandates” to obtain collection authority:14 • Notify retailers in advance of any rate changes within the state; • Designate a single state organization to handle sales tax registrations, filings, and audits; • Establish a uniform sales tax base for use throughout the state; • Use destination sourcing to determine sales tax rate for out16

AUSTINLAWYER | OCTOBER 2016

of-state purchases; and • Provide free software for managing sales tax compliance and hold retailers harmless for any errors resulting from relying on state-provided systems and data.15 By adopting one of these two options, a state is then authorized to require retailers to collect and remit sales taxes. As a result, according to the Act’s website, “retailers across the country will find collecting sales tax for multiple states much easier than it has ever been in the past.”16 Overall, the Act, composed of only six brief sections, has raised many critical eyebrows but has also received significant praise.

PROS OF THE ACT According to the Act’s supporters,17 benefits include making the retailer responsible for collecting sales tax arising from online purchases, ensuring online retailers remit tax in states where the retailer benefits, and ensuring the state receives all sales tax revenue.18 Importantly, the Act provides a means for states to collect tax revenue from online sales where consumers often do not remit required use taxes. Arguably, the Act could capture between $2 billion and $22 billion per year while keeping state administrative costs down.19 Because of this, many state leaders have already come out in favor of the Act.20

CONS OF THE ACT However, not everyone is on board. There are many who think the Act impermissibly expands a state’s taxation borders into an out-of-state retailer’s pocket.21 As a result, the retailer, who has no brick-and-mortar location in the state, must become a tax collector for the state— shouldering the time, expense, and administration. Opponents argue that the Act imposes unnecessary burdens on retailers who will have to implement systems to collect and remit sales taxes for every state where an online purchaser resides.22 Opponents also raise privacy concerns. To comply with the Act, retailers will have to share personal data with multiple states, increasing their risk of data theft.23 Further, in addition to knowing a state’s tax

laws for each corresponding online purchaser, potentially a compliance nightmare, the retailer will also be vulnerable to multiple audits for the same period in multiple states.

RECOMMENDATIONS Any retailer who engages in online or catalog sales should keep an eye on the Act.24 It may be beneficial to begin cautiously assessing what steps need to be taken in order to comply, such as maintaining organized records of online and catalog sales as well as corresponding local sales tax rates. Retailers could also begin contacting state and local tax experts who can assist them in navigating the myriad of states’ tax laws. More importantly, whether you are opposed to or in favor of the Act, contacting your elected representatives is a good way AUSTINLAWYER AL AL to make yourself heard. Footnotes: 1. In response, some states have attempted to pass creative legislation to create nexus for taxability purposes. See Performance Mktg. Ass’n, Inc. v. Hamer, 998 N.E.2d 54 (Ill. 2013) (overturning a “click-through” nexus law that was preempted by federal law). 2. The 2015 bill is a re-introduction of the 2013 bill and has substantially similar language. 3. Marketplace Fairness Act Information, marketplacefairness.org/ (last visited April 5, 2016). 4. Nat’l Bellas Hess, Inc. v. Dep’t of Revenue of State of Ill., 386 U.S. 753 (1967). 5. Quill Corp. v. N. Dakota By & Through Heitkamp, 504 U.S. 298, 318 (1992). 6. Nat’l Bellas Hess, Inc., 386 U.S. at 760. 7. What is the Marketplace Fairness Act of 2013?, Marketplace Fairness Act Information, marketplacefairness.org/whatis-the-marketplace-fairness-act/ (last visited April 5, 2016). 8. Small sellers with less than $1 million in annual nationwide remote sales are exempt. 9. Marketplace Fairness Act of 2015, S. 698, 114th Cong. (2015); see also Marketplace Fairness Act Bill, Marketplace Fairness Act Information, marketplacefairness.org/ bill-text/ (last visited April 5, 2016). 10. S. 698 § 2(a); see also Streamlined Sales and Use Tax Agreement, StreamlinedSalesTax.org, streamlinedsalestax.org/uploads/ downloads/Archive/SSUTA/

SSUTA%20As%20Amended%200504-16.pdf (last visited April 5, 2016). 11. Streamlined Sales and Use Tax Agreement, supra note 9. 12. Id. 13. S. 698 § 2(a). 14. Id. § 2(b). 15. What is the Marketplace Fairness Act of 2013?, supra note vii. 16. Id. 17. Over 300 organizations and businesses support the Act. Who supports the Marketplace Fairness Act?, Marketplace Fairness Act Information, marketplacefairness.org/ support/ (last visited April 5, 2016). 18. See What is the Marketplace Fairness Act of 2013?, supra note 7. 19. Harry Baturin, The Marketplace Fairness Act: Potential Solutions to an Imperfect Law, Georgetown Public Policy Review (May 12, 2015), gppreview. com/2015/05/12/the-marketplace-fairness-act-potentialsolutions-to-an-imperfect-law/ (referencing the negative economic impact of Quill on states). 20. Who supports the Marketplace Fairness Act?, supra note 26 (referencing bipartisan support from 26 governors). 21. Americans for Tax Reform Opposes the Marketplace Fairness Act, Americans for Tax Reform (March 20, 2013), atr.org/americans-tax-reform-opposes-marketplace-fairness-a7527. 22. Id.; Marketplace Fairness Act: Internet Sales Tax is Anything but “Fair” for Online Sellers and Customers, Heritage.org (May 29, 2013), heritage. org/research/factsheets/2013/05/ marketplace-fairness-act. 23. See Baturin, supra note xviii. 24. See GovTrack.us, govtrack.us/ (last visited April 5, 2016).

Amy L. K. Wills is a former clerk of Texas Supreme Court Justice Jeffrey S. Boyd. She is currently a Staff Attorney at the Texas Department of Insurance where she focuses on administrative law and licensing compliance.

LEGISLATIVE UPDATE

Taxation Without Legislation BY ERIC WRIGHT, CONGRESS AVENUE PARTNERS

n 1996, Expedia and other online travel companies (OTCs) launched to offer online, real-time bookings for hotels, airlines, and rental cars. These OTCs emerged in the market to aggregate information on rooms and prices for the convenience of the consumer. The OTC model is beneficial to consumers by giving them greater insight into availability, comparative pricing, and customer ratings. Today, the OTC market has expanded to include cruises, bundled packages, and vacation rentals. For its part, the OTC simply acts as an intermediary between the traveler and the entity selling the room, car, or other services. Travelers who book a hotel room through an OTC pay a fee and a portion of this fee is remitted to the hotel for the underlying cost of the room and the taxes associated with the cost of the room. The remainder stays with the OTC as a service fee for facilitating the transaction with the consumer. Throughout the entire transaction, OTCs have no control over the price for which a room is offered for sale nor do they control access to the rooms. Hotels are required to collect and remit hotel occupancy taxes (HOTs) based on the price of a room they offer. HOTs are levied by

Some municipalities argue [hotel occupancy taxes] should be based on the higher retail price that OTCs offer consumers. The municipalities’ complaints have resulted in three lawsuits in Texas. the state, some cities, and certain other jurisdictions (i.e. counties and sport authorities). When rooms are booked through OTCs, hotels collect and remit HOTs based on the discounted room price they offer OTCs. Some municipalities argue HOTs should be based on the higher retail price that OTCs offer consumers. The municipalities’ complaints have resulted in three lawsuits in Texas. Despite having prevailed in two of the three suits (the third is pending appeal), OTCs are currently in a holding pattern. In Texas, there is concrete case law on this subject at the state and federal level. One federal case (City of Orange v. Hotels.com, et al.) was dismissed, absolving OTCs of violating the relevant municipal ordinance. In City of Houston, et al., v. Hotels.com, et al., the Texas court of appeals upheld the lower court ruling in favor of the OTCs. The Texas Supreme Court declined to hear the case, letting the lower court

ruling stand. In 2011, the 82nd Texas Legislature addressed this very question by considering HB 1451, which would have made explicit what the cities claim in their lawsuits: that the determinate room price for calculating the amount of HOTs should be the retail price presented to the consumer and not the price OTCs pay the hotel for the room. HB 1451 was considered in committee but the Legislature declined to enact the law. The cities have sought to override the judgment of legislators by asking courts to re-interpret what they have already rejected. The above state and federal court decisions, coupled with the Texas Supreme Court’s decision not to take up this matter, make clear that the determinate room price issue has been unambiguously resolved in favor of OTCs. Even if municipal HOT provisions remain unclear, any ambiguity must be resolved in the OTC’s favor. Specifically, decades of Texas Supreme Court precedent on the statutory construction of tax provisions hold that where the statute is ambiguous, the court shall err against the taxing authority in its interpretation. A third case, City of San Antonio, et al. v. Hotels.com, et al., is presently being considered by a federal district court in Texas; the initial ruling was for the cities, but an appeal to the 5th Circuit is forthcoming. This case hinges on a jury finding that OTCs control the hotel rooms. Cities argue that the OTCs are operators or resellers and that OTCs should pay the HOT based on the retail value of the hotel room. For their part, OTCs simply have contracts with hotels to govern their online promotions and neither own, operate, nor control hotels rooms.

Congress Avenue Partners is comprised of principals Eric Woomer, Eric Wright (pictured above), Buddy Garcia, and Gregg Knaupe. The firm offers strategic legislative advice and political counsel. The views and opinions expressed are those of the author and do not necessarily reflect the views or opinions of the Austin Bar Association.

According to Texas Governor Gregg Abbott’s Office of Economic Development and Tourism, total direct travel spending in Texas in 2015 totaled $68.7 billion, employed 647,000 Texans and generated $10.4 billion in state and local tax revenue. The July 2016 report shows that hotel/motel travel accounted for almost $40 billion of the total travel dollars spent in Texas. Our state tax system is a necessary burden imposed to ensure that government services are available to our states’ citizens and travelers alike. However, any attempts to impose these taxes where no statutory authority exists will hurt the industry,LAWYER its employees, and our AUSTIN AL AL Texas economy. OCTOBER 2016 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN KATIE FILLMORE BUTLER SNOW

Exciting Upcoming Events for AYLA

he fall schedule for AYLA is packed with exciting activities. We are thrilled to announce several new programs, as well as the return of some favorites from past years. If you aren’t currently a member of AYLA, sign up now to join in the fun!

AYLA CLE Ethics Bus On Wednesday, October 5, AYLA’s Ethics CLE bus will return for its third year. Attendees will get three hours of ethics credit while traveling on a chartered bus from downtown Austin to the Deep Eddy Vodka Distillery in Dripping Springs. The event will feature three ethics presentations, networking opportunities, and a tour and tasting at the distillery. Past participants commented it was a fun way to earn ethics credit. Please contact Debbie Kelly at debbie@ austinbar.org to sign up or to sponsor.

Docket Call Happy Hours We are currently making plans for locations and sponsors for our monthly Docket Call member happy hours. Mark your calendars with the following dates. Check the AYLA website or Facebook page for locations. • Thursday, Oct. 20, 5:30 to 7 p.m. • Thursday, Nov. 17, 5:30 to 7 p.m. • Thursday, Dec. 15, 5:30 to 7 p.m. If you are interested in sponsoring or helping, please contact Debbie Kelly at debbie@austinbar.org.

Tailgating for a Cause: (Texas vs. Baylor) For the first time, AYLA will host a fundraiser tailgate for the Texas vs. 18

AUSTINLAWYER | OCTOBER 2016

Baylor game on October 29. Fans for both sides are welcome to join the fun. Admission to the tailgate is $20 per person, and the proceeds will go toward AYLA’s Reindeer Games event, a holiday party for underprivileged families in the community. Regardless of which team you are rooting for, it’s a win-win: enjoy a great time while benefiting a great cause. See announcement on page 19 for additional details. We are also looking for sponsors and donations of food and drinks for the event. If you would like to help or need more information, please contact Franklin Hopkins at fhopkins@germer-austin. com, Rudy Metayer at rmetayer@ chmc-law.com, or Jorge Padilla at jpadilla@jw.com. Special thanks to Hopkins for letting us use his tailgate space!

Austin Bar/ AYLA Leadership Academy The Austin Bar/AYLA Leadership Academy is returning for its fifth year. The Leadership Academy is an excellent way to get exposure to the Austin Bar and AYLA leadership and programs. Members of the leadership class will develop strong bonds with fellow class members and have the opportunity to be on a committee for the Austin Bar or AYLA. The class meets monthly from January through June 2017 for lunch and presentations focused on leadership, the Austin community, and lawyer-driven projects. Applications will be posted at austinbar.org soon. Both self-applications and nominations are accepted. Please nominate colleagues, friends, and new lawyers who would benefit from the program. For questions about the Leadership Academy, please contact Travis Plummer at travis.e.plummer@gmail.com.

Diversity Project: Strength in Unity AYLA will partner with the City of Austin and the Austin Police Department on a town-hall-style forum to bridge the gap between law enforcement officers and the community they serve. AYLA member Rudy Metayer hosted a similar program last year for the Texas Young Lawyers Association. Given the recent tragedies in Dallas, we believe it is especially timely to keep the conversation going. This project is still in the planning stages. We would love to have input and help. Please contact Katie Fillmore at katie@ ayla.org or Metayer at rmetayer@ chmc-law.com if you would like to be involved.

Vote ATX!

Bar & Grill Bar & Grill, Austin’s all-lawyer musical revue, returns to the stage for its 24th annual production at 8 p.m. on November 5 at the Scottish Rite Theater (207 W. 18th Street). Each year, Austin lawyers produce and star in an original musical. This year’s theme is “Once Upon a Vote,” an election-themed mashup of Disney shows. Proceeds from the show benefit the AYLA Foundation. If you are interested in attending, sponsoring, or helping out, please contact Debbie Kelly at debbie@ austinbar.org.

Reindeer Games Reindeer Games, a holiday event for underprivileged families, will return on December 11 at Parque Zaragoza. This rewarding volunteer opportunity brings joy to many children and families in need. If you are interested in helping plan, volunteer, or sponsor the event, please contact Debbie Kelly at debbie@austinbar.org.

AYLA is partnering with various local young professional organizations, such as Austin Young Chamber of Commerce and Young Women’s Alliance, to promote voter Get More Involved registration and encourage young people to vote in the upcoming I encourage all AYLA members to election. Although many young get more involved in the organizaprofessionals are registered to vote, tion. AYLA has many great events many move without updating their planned, and we would love to have registrations and forget to do so you there! The first step is to simply before it is too late. In coordination show up. This year, we will have deswith TYLA’s Vote America! initiaignated AYLA Ambassadors at every tive, we plan to do a local push to event to welcome and introduce you educate and register members and to other members. There is no reason the public, and to encourage them to to be shy! Like us on Facebook to exercise their right to vote. keep up with what we are doing: faceAYLA President-Elect Austin book.com/austin.young.lawyers. Kaplan and AYLA member Michael For those interested in serving Choate are deputized volunteer on a committee, there are plenty of voter registrars. Kaplan and Choate opportunities and we could use your will be at AYLA events leading up help. You can sign up for a committo the election to help people regtee at austinbar.org/young-lawyers/ ister. The goal is to increase voter projects. registration and promote cross-netI hope to see you at our events working between young professional this year. As always, you are organizations. Please contact Austin welcome to contact me directly with Kaplan at akaplan@kaplanlawatx. AUSTIN any ideas or questions at katie@ LAWYER com for more information. AL AL ayla.org.

AUSTIN YOUNG LAWYERS ASSOCIATION

Texas vs. Baylor Tailgate Party Benefitting AYLA Foundation, Reindeer Games

he college football season is underway, and AYLA will host a tailgate on October 29, 2016, prior to the University of Texas’ home game against Baylor University. All members of the Austin Bar Association and Austin Young Lawyers Association are welcome to attend, along with family and friends. We will have a smoker on hand and will provide food and drinks in exchange for donations of $20 per person (kids under 12 are free). All proceeds will benefit the AYLA Foundation and the upcoming Reindeer Games which provides gifts and HEB gift cards for families in need during the holiday season. Questions? Contact Rudy Metayer at rmetayer@

chmc-law.com, Franklin Hopkins at fhopkins@germer-austin.com, or Jorge Padilla at jpadilla@jw.com. We hope to see you there! DATE: October 29, 2016 TIME: TBD, depending on kickoff time (tailgate will begin three hours prior to kickoff) LOCATION: Lot 92 in front of the SWG Parking Garage. From the intersection of Dean Keeton (26th Street) and Speedway, go half a block north. Lot 92 is on the left. Lot 92 is on the west side of the Chemical & Petroleum Engineering Building and directly behind the toddler playground located behind Dell Children’s AUSTIN LAWYER Medical Center. AL AL

Austin Young Lawyers Association Presents

UPCOMING EVENTS WEDNESDAY, OCT. 5 AYLA CLE Bus Deep Eddy Distillery 3 hours of ethics CLS 12:30 to 4:30 pm Email Debbie Kelly at debbie@austinbar.org for more information THURSDAY, OCT. 20 AYLA Docket Call 5:30 to 7 p.m. Location TBD Sponsored by: Pioneer Wealth Management and 3D Modeling Co. SATURDAY, OCT. 29 AYLA Tailgate UT vs. Baylor $20 a person

Vote ATX “

Bar & Grill 24 November 5, 2016 at 8 pm Austin Scottish Rite Theater 207 W 18th Street Tickets www.ayla.org Once poster.indd 1

9/1/16 1:58 PM

obody will ever deprive the American people of the right relatives, colleagues, and neighto vote except the bors. As attorneys, we believe it American people themselves— is incumbent upon us not only and the only way they could do to participate, but to encourage this is by not voting.”—Franklin others to participate as well. D. Roosevelt AYLA will: (1) deputize This year, and for the first registrars; (2) register people to time, AYLA will join with the vote at AYLA events until the Austin Young Chamber of registration deadline on October Commerce, the Young Women’s 11; and (3) encourage registered Alliance, and many other local voters to exercise their right professional organizations to this November 8. Among other register the young professional community events, AYLA will community to vote. As of May register voters at the SXSW 2016, more than a quarter of the Eco conference on October 10 voting-age population in Texas and 11 from 10 a.m. to 6 p.m. If was not registered, and only 43 you would like to get involved, percent of the voting-age popplease contact Michael Choate ulation in Texas voted during at mwchoate@gmail.com, or the last presidential election. AYLA President-Elect Austin This non-partisan effort seeks Kaplan at akaplan@kaplanlato increase registration and AUSTIN LAWYER watx.com. participation among our friends, AL AL

OCTOBER 2016 | AUSTINLAWYER

SOCIAL MEDIA SAVVY

Legal Ethics and Social Media BY RACHAEL K. JONES

public, such as LinkedIn, Facebook, and Twitter—constitutes an advertisement; any such website or profile is therefore subject to disclosure and retention requirements under the TDRPC and should also be filed with the Advertising Review Department. Even a 140-character Tweet should include an appropriate disclosure if it contains commercial speech (luckily, commonly used abbreviations are typically acceptable in this context). • Avoid commercial speech in social media posts. • Treat any posts that mention your law firm or are intended to promote your practice or legal reputation as advertising. • Review and abide by the TDRPC’s disclosure and retention requirements. • Include a link to your disclaimer in the “About” section of your social media page. • File publicly available social media profile pages with the Advertising Review Department.

lthough lawyers may not always think about it, legal ethics rules are just as applicable online as offline. To help avoid accidental violations of the Texas Disciplinary Rules of Professional Conduct (TDRPC)1 while using social media, here are a few considerations to keep in mind. ACCIDENTAL ADVERTISING OR SOLICITING

ISSUE: If your post includes or implies a request to contact you or visit your website, it may well be considered advertising or solicitation. The key question is whether the post contains “commercial speech”—i.e., whether it is made primarily for business purposes. If a post contains commercial speech, it is subject to Part VII of the TDRPC. Notably, the Advertising Review Committee’s revised Interpretive Comment 17 (available at texasbar. com/adreview) expressly states that any website which “describes a lawyer, law firm or legal services rendered by them”—specifically including social media sites with “landing pages” (a.k.a. profile pages) that are generally available to the

IMPROPER DESIGNATION OF SPECIALIZATION

ISSUE: Part VII of the TDRPC also provides that lawyers may not hold themselves out to be “specialists” or

on their profiles by third parties. Some particular areas for concern include: posts that may create unjustified expectations about the results the lawyer can achieve (Rule 7.02(a)(3)); comparisons of the lawyer’s services to other lawyers’ services without substantiation by verifiable, objective data (Rule 7.02(a)(4); and references to the lawyer as a “specialist” or “expert” (Rule 7.04(a)). • Monitor your social media profiles for potential noncompliant content posted by others, and delete any such content when you find it. If you are unable to delete the content yourself, contact the person who posted it and ask him/her to remove it.

“experts” in a particular area of law unless they hold a certification in that field from the Texas Board of Legal Specialization (TBLS) or an organization accredited by the TBLS.2 It is permissible to include a listing of designated practice areas on a social media profile, but such a list may not appear under a heading such as “Specialties” or “Expertise” unless you are actually board-certified. Be mindful that certain platforms may automatically populate such sections. • If your social media profile includes a listing of your practice areas, review your profile (as it appears to the public) to ensure that it does not state or imply that you “specialize” or are an “expert” in those areas unless you are board-certified.

In the next issue, Jones will conclude with tips on unauthorized communications, breach of privilege/ confidentiality, spoilations, unintended attorney-client relationship, AUSTIN LAWYER and unauthorized practice of ALlaw. AL Footnotes:

IMPERMISSIBLE TESTIMONIALS AND ENDORSEMENTS

ISSUE: Lawyers are responsible for ensuring that all content on their social media profiles—regardless of who posted it—complies with the ethics rules. As such, lawyers with profiles on social media platforms that have functions for testimonials and endorsements (e.g., LinkedIn, Avvo) must regularly review content posted

1. The full text of the TDRPC can be found at legalethicstexas.com/Ethics-Resources/ Rules/Texas-Disciplinary-Rules-of-Professional-Conduct.aspx. 2. An exception applies for patent and trademark attorneys. See TDRPC Rule 7.04(a)(1).

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DEVELOPING YOUR PRACTICE

Office Options: What’s Right for You? Considerations Range from Practice Area and Confidentiality to Target Clientele BY DIRK JORDAN

ne of the first decisions you make when starting your firm is where you will office. Your answers depend on how much you are willing to spend, your space requirements, and whether you want to be downtown or elsewhere. Here are some of the most common options.

uninterrupted time. • You have the need to be around other people. Staying home to work can be lonely.2 If you are not a solo, chances are you will need some type of commercial space in order to run your practice.

YOUR HOME

Office suites are spaces where you pay rent only for the time you use the space. You pay a fee every month regardless of use because they handle your mail and incoming phone calls. If you use any office or conference room space, there is normally a per-hour rent. This is an option if you need to have Class A space for your clients, or you need to be downtown, but do not want to pay a lot.

If you are starting out as a solo, think about working out of your residence. It is the least expensive choice. Twenty-five percent of lawyers in Texas office out of their houses. Your commute is really short. But it is not for everyone. • You must be disciplined and a self-starter. No one is there telling you when to be at your desk. And if daytime TV is an irresistible draw1 this may not be for you. • Certain practice areas should never use their residence as an office. For example, criminal defense and family law practices. You may not want your clients to know where you live. You can get a PO Box as your mailing address. And, of course, you can meet your clients in another setting, like in their office. But for some, that is not a viable option. • Your target clientele expects a professional office. • You have others at home who will not understand your need for

OFFICE SUITES

OFFICE SHARING Office sharing is done by many solos and small firms. Many of the older houses west of the Travis County Courthouse are inhabited by lawyers who have no business relationship except a shared address. Generally, the rent includes everything.3 I have paid as little as $600 per month and as much as $2000 per month.4 A benefit of office sharing is being around other lawyers who are available to answer questions and who can actually collaborate on your cases if needed. You can cover for each other

if on vacation or otherwise busy. You need to be mindful of confidentiality issues. Normally this will not be a problem if you have a separate office with the ability to close and lock your door, but it is something to consider

COMMERCIAL OFFICE SPACE Class A office space downtown is the stereotypical law-firm location. Many large firms have moved out of downtown but still office in Class A space. High-rise buildings offer lots of flexibility in terms of square footage and amenities. But it can be expensive. Have you checked downtown rents lately? Most commercial leases have triple net, which means you pay your proportionate share of repairs, utilities, and taxes. If you have a large number of employees and lawyers (five plus), this may be the only way you can find enough space for everyone. You will also be paying for parking for everyone. It can be worth it if you need this type of office to attract your target clientele. Then it’s a matter of finding the best deal possible. Consider sub-leasing from other firms who have excess space. This may reduce the amount of rent you will have to pay. If you have any questions regarding various office options, feel LAWYER free to AUSTIN email me at dirk@dirkjordan.com. AL AL

Dirk Jordan has a solo practice focusing on commercial litigation and is an adjunct professor at the University of Texas School of Law teaching classes on law firm management. He is also the Chair of the Law Practice Management Committee for the State Bar of Texas.

Footnotes: 1. I cannot imagine how daytime TV could be that compelling, but I may be a minority. 2. If you office out of your house, you have to take the initiative to arrange lunches and happy hours with others. Isolation can lead to real problems for some people. 3. You may be charged extra for use of the receptionist, copier, parking, etc. 4. I recommend the former.

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