austinbar.org SEPTEMBER 2017 | VOLUME 26, NUMBER 7
Join the Austin Bar Association for 2018 and Receive the Rest of 2017 for Free
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e’re kicking off the 2017-2018 Bar year by sending this issue of the award-winning Austin Lawyer to all attorneys in the Austin area. If you aren’t already a member of the Austin Bar, now is the perfect time to join. Read Austin Bar President Amy Welborn’s “President’s Column” on page six to see why the Austin Bar is Bar One—bar none! Members receive a host of member benefits which provide a solid return on their investment, including: • Subscription to Austin Lawyer magazine • Many free and discounted CLE opportunities, including a monthly 4th Friday Free CLE with lunch included
• Selected CLEs streamed live via Periscope and offered free online at austinbar.org • Online membership directory searchable by the public • Member discounts on a variety of services • Subscription to Bar Code, a weekly e-newsletter • Participation in annual judicial preference and evaluation polls • Access to 24 substantive law sections • “Travis County Resources Guide” (Bench Book) available online • Many opportunities to participate in community service • Networking opportunities through committee participation and social events
If you aren’t already a member, now is the perfect time to join... Whether your interest is in community service, judicial programs, education, or service to the profession, the Austin Bar offers a wide range of committees, programs and activities to fit your interests.
• 100 Club membership, for firms with four or more attorneys who have 100 percent participation • Access to temporary office space at the Austin Bar’s downtown office • Texts with Travis County Civil Court jury trial schedules (to opt in, text the keyword “Austinbar” to 313131) • Career Center on Austin Bar’s website for employers and job seekers
Whether your interest is in community service, judicial programs, education, or service to the profession, the Austin Bar offers a wide range of committees, programs, and activities to fit your interests. Visit austinbar.org for more information about membership and benefits, and to join online. For questions or to join with staff assistance, contact Director of Membership, Carol Tobias, at 512.472.0279, x106 or Carol@ AUSTINLAWYER AL AL austinbar.org.
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CONTENTS
AUSTINLAWYER SEPTEMBER 2017 | VOLUME 26, NUMBER 7 AL A L INSIDE FEATURED ARTICLES 1 Join the Austin Bar Association for 2018 and Receive the Rest of 2017 for Free 5
Join Austin Bar’s 100 Club for the 2017–2018 Bar Year
9
Austin Bar/AYLA Leadership Academy Rocks ArtFest
10
Austin Attorney Discovers Greener Pastures
16
Austin Bar Association Wins Multiple Stars of Texas Bars Awards
17
Congratulations Fifty-Year Lawyers
30
New Courts Approved for Travis County
31
Robert Calvert Inns of Court Hosts Mentoring Program
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Trivia Night Raises Funds for Austin Bar Foundation
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Three Austin Bar Leaders Recognized by NBTA
ONLINE
DEPARTMENTS 6 President’s Column 12 Opening Statement 14 Briefs 15 Minority Bar Spotlight 18 Third Court of Appeals Civil Update 21 Third Court of Appeals Criminal Update 22 Federal Criminal Court News 24 Entre Nous 26 Practice Pointers 27 Legislative Update 28 Social Media Savvy 32 AYLA 39 Ad Index
ONLINE austinbar.org EMAIL nancy@austinbar.org MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Suite 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar STREAM @AustinBarAssociation
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NEWS & ANNOUNCEMENTS
EVENTS & MORE
2016 Diversity Report Card Released
SEPT 7 Austin Bar Kick Off
Howry, Breen & Herman Issue Challenge to Area Firms Make a Donation to Help Fight Racism
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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION Amy Welborn ............................ President Adam Schramek ....................... President-Elect D. Todd Smith ............................ Secretary Kennon Wooten ...................... Treasurer Leslie Dippel .............................. Immediate Past President
AUSTIN YOUNG LAWYERS ASSOCIATION Austin Kaplan ............................ President Jorge Padilla .............................. President-Elect Sandy Bayne .............................. Treasurer David King .................................. Secretary Katie Fillmore ........................... Immediate Past President
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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 U.S. Western District Federal Court and Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab.
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Join Austin Bar’s 100 Club for the 2017–2018 Bar Year
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he 100 Club is comprised of firms of four or more attorneys with 100 percent participation in the Austin Bar Association. The 100 Club list is published annually in the September issue of Austin Lawyer and distributed to every attorney in the Austin area. The firms are also featured on the membership page of the Austin Bar website with links to the firms’ websites, and featured 100 Club Members of the Week are listed on a rotating basis in Bar Code, emailed weekly to about 4,000 Austin Bar members. Interested in becoming a 100 Club member? Contact Carol Tobias, director of membership, at carol@austinbar.org. Special thanks to the following Austin law firms for supporting the programs and practices of the Austin Bar with 100 percent participation in 2016-2017.
Allenworth & Porter Almanza, Blackburn, Dickie & Mitchell Armbrust & Brown Andrews Kurth Andrews Myers Ausley, Algert, Robertson & Flores Barnes Lipscomb Stewart & Ott
Barnett & Garcia Beck Redden Blazier, Christensen, Browder & Virr Booth, Ahrens & Werkenthin Boulette Golden & Marin Bracewell Branscomb Brim, Arnett & Robinett Brink Bennett Flaherty Buchanan Grabouski Burns Anderson Jury & Brenner Cain & Skarnulis Cantilo & Bennett Chamberlain McHaney City Of Austin Law Department Coldwell | Bowes Cook Brooks Johnson Cornell Smith Mierl & Brutocao Davis & Wright Deats, Durst & Owen Denton, Navarro, Rocha, Bernal, Hyde & Zech DeShazo & Nesbitt Dickinson Wright DuBois, Bryant & Campbell Eichelbaum Wardell Hansen Powell & Mehl Enoch Kever Erskine & Blackburn Friday Milner Lambert Turner George Brothers Kincaid & Horton Giordani, Swanger, Ripp & Phillips Gjerset & Lorenz Graves, Dougherty, Hearon & Moody Greenberg Traurig Hanna & Plaut Hawkins Parnell Thackston & Young Hays & Owens Hendler Lyons Flores
Hohmann, Brophy & Shelton Hopper Mikeska Hunton & Williams Ikard Golden Jones Ikard Wynne Jackson Lewis Jackson, Sjoberg & Townsend Kelly Hart Kiester, Lockwood, Ciccone & Bollier Kuperman, Orr & Albers Littler Mendelson Lloyd Gosselink Locke Lord Martens, Todd, Leonard, Taylor & Ahlrich McDonald, Mackay & Weitz McKool Smith McLean & Howard Metcalfe Wolff Stuart & Williams Minton, Burton, Bassett & Collins Munsch Hardt Kopf & Harr Noelke Maples St.Leger Bryant Norton Rose Fulbright Office of the Attorney General Osborne, Helman, Knebel & Scott Parsley Coffin Renner Pillsbury Winthrop Shaw Pittman Piper Burnett Pirkey Barber Reed, Claymon, Meeker & Hargett Reeves & Brightwell Richards Rodriguez & Skeith Scott Douglass & McConnico Sharp & Cobos Shaw Cowart Slack & Davis SledgeLaw Group Smith Law Group
Spivey & Grigg Supreme Court of Texas Taylor Dunham and Rodriguez Terrill & Waldrop Texas Comptroller of Public Accounts Texas Department of Motor Vehicles Texas Rio Grande Legal Aid Texas Workforce Commission The Chapman Firm The Hay Legal Group Third Court of Appeals Thompson & Knight Thompson Salinas Rickers & McDermott Travis County Attorney’s Office Travis County Court at Law Judges Travis County Criminal Courts Travis County District Attorney’s Office Travis County District Court Judges Travis County Probate Court Waller Lansden Dortch & Davis Weisbart Springer Hayes Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higginbotham Winstead AUSTIN LAWYER Womack McClish Wall & Foster Wright & Greenhill AL AL
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PRESIDENT’S COLUMN AMY WELBORN, PARTNER, HAWKINS PARNELL THACKSTON & YOUNG
The Austin Bar is Bar One, Bar None in the bar. To support our vision and history, we are launching a platform that embraces the core values that will help us stand strong for another 125 years— Bar One. The Austin Bar serves many roles and provides wonderful services to its members.
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018 marks the 125th year of the Austin Bar’s journey to serve the legal community in Central Texas. Evolution and change, while embracing the best parts of the organization, have been a constant theme during the life of the Austin Bar in order to honor our ongoing commitment to providing value to our membership and the community at large. The Austin Bar has evolved from a small group of all male lawyers at its founding to include more than 4,000 diverse members today. It has remained relevant because of its commitment to its members and to the community. Whether you are a plaintiff’s attorney or a defense attorney, a transactional lawyer or a litigator, big firm lawyer or solo practitioner, we are all one
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AUSTINLAWYER | SEPTEMBER 2017
BENEFITS. There are numerous member benefits including an online member directory, an online Bench Book (“Travis County Resources Guide”), work space in our beautiful offices, texts of weekly civil jury trial schedules, countless member discounts, and so much more. Do you need a new car? Want to get in shape? Need CLE? Need a gift for your significant other or client? We have a discount for that—and so much more! The benefits provided are meant to enhance the work you do in service of the law, but also to help enrich your life outside of the office. ACTIVISM. Many of us went to law school driven by the altruistic motivation to make the world a better place and to make a difference. The Austin Bar exists to help you make this a reality. We have numerous
To support our vision and history, we are launching a platform that embraces the core values that will help us stand strong for another 125 years—Bar One.
125 opportunities to work on legal services projects in which you can volunteer your legal talent to assist pro se litigants, work with veterans at our clinic, or on one of our many other pro bono projects. We offer opportunities to work with children teaching them about the law, including working with the Akins High School Legal Eagles team, working with the YMCA youth and government programs, and volunteering to judge a mock
trial. Of course, if having fun while financially supporting a good cause is more your cup of tea, we have exciting fundraisers throughout the year, such as our annual gala that raise money for the Austin Bar Foundation to support philanthropic efforts. RELATIONSHIPS. Relationships are the foundation of a successful and fulfilling law practice. The Austin Bar continued on page 8
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PRESIDENT’S COLUMN is an organization filled with members as diverse as our profession. I have met some of my best friends and co-workers, and gained referral sources, through the Austin Bar. One of my favorite new programs to be instituted this year is 10 for 10, in which we will bring together 10 Austin Bar members who may have never met before for lunch and relationship building. The Austin Bar is our community, our law family, and our professional network. Lawyers are often seen in the public eye only in times of adversity and conflict. (I don’t think I need to tell you we are not the most loved of all professions.) The Austin Bar gives us opportunities to build positive relationships within the Austin community though activities such as the soon-to-be launched Legal Podcast. Learn more about the great opportunities offered in the coming year, meet your fellow Austin Bar members, and build lifelong relationships at the Austin Bar Kick Off Happy Hour
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AUSTINLAWYER | SEPTEMBER 2017
continued from page 6
on September 7 at 5:30 p.m. at Star Bar on West Sixth Street. OPPORTUNITIES. Participation in committees and activities provides opportunities for leadership and personal growth. Joining a committee can open doors to new possibilities and help you improve your leadership, motivational, and business skills. The Austin Bar/AYLA Leadership Academy is a great opportunity to learn leadership skills and to become a leader in the Austin Bar. There is a committee to suit every interest and every level of time commitment. Please consider joining one. We are only as strong as our volunteers! NETWORKING. We all know the value of networking. The Austin Bar has more than 4,000 lawyers in many different practice areas. Come to an event and meet people to whom you can refer cases, and who can refer cases to you. We all could use a few more contacts and a few
good referrals. Take advantage of the opportunities. Join a section and meet people who practice in your field. Having a network to bounce ideas off of and to work together with makes us stronger and smarter. We are launching a new breakfast series this year called People You Should Know to bring together individuals who impact the community with members of the Austin Bar. You’ll have the chance to network with these influencers in an intimate setting while learning about key issues impacting Austin. EDUCATION. All lawyers need CLE and the Austin Bar offers a ton! We have informative and relevant CLE topics presented by every section specific to its practice area. We are expanding our CLE program outside of downtown to meet the needs of our membership. Did you know we offer a library of FREE CLE on the Austin Bar website? And mark your calendars for a very
special Bench Bar Conference this year, as we will be traveling to San Antonio for a weekend of networking, learning, and fun! Our benefits, activism, relationships, opportunities, networking, and education are the foundations that have made us relevant and strong for more than 125 years and will continue to do so for many years to come. Bar One embodies the core values of the Austin Bar, but it is the members which bring the concept to life every day through our interactions with colleagues and peers, and the community we serve tirelessly day in and day out. The principles behind Bar One have sustained our organization for 125 years and counting. Focusing on these principals daily will lead to the next 125 years of growth and evolution. Happy birthday, Austin Bar. You are looking strong, healthy, and ready for what the future brings. It is my honor to be a part of the continued success of such a AUSTIN LAWYER AL AL fantastic organization.
Austin Bar/AYLA Leadership Academy Rocks ArtFest Class Project Raises Money for Two Local Organizations
O
n July 19, 2017, the Travis County legal community joined together at Mercury Hall for ArtFest, an event celebrating some of the best local artists, musicians, and purveyors of food and drink in Austin, as well as the beneficiaries of the evening—the Arc of the Capital Area and Travis County #StrongerTogether. The event raised almost $16,000 for the two organizations. The inaugural ArtFest was organized by the 2017 Austin Bar/ AYLA Leadership Academy as the culmination of a six-month program wherein approximately 40 local attorneys from all areas of practice and all types of firms came together out of a common desire to develop as leaders in service to their local community. Attendees perused the work of local artists Katie Conley, Greg Daily, Patrick Fagerberg, Darryl Freeman, Holli Hartman, Melissa Hayes, Ross High, Kelli Horan, Jon McKenzie, Rene Perez, Isabel Stensland, Stephanie Strain, and Tom White. All who came were also treated to the sounds of local Austin musicians Christina Cavazos, Chris Fullerton, Jaimee Harris, Terry Klein, and Megan Lacy. Jennifer D. Ward, local solo practitioner and ArtFest chair,
perfectly described the event: “In the end, ArtFest was classic Austin. We had 100-degree weather, a chance to mingle with local artists and musicians, and really great food. The best part was that all of the proceeds supported organizations doing important work right here in our community.” Texas House Representative Eddie Rodriguez, Travis County #StrongerTogether’s founder, praised the organization’s involvement in ArtFest. “Travis County #StrongerTogether is incredibly honored to have been chosen as a beneficiary of ArtFest. It was inspiring to see such a diverse crowd, from renowned local artists to distinguished attorneys, come together for one purpose: to support Travis County #StrongerTogether and the Arc of the Capital Area in our efforts to serve vulnerable populations in the community. We couldn’t ask for better company! ArtFest is a perfect example of what is possible when we all work together. The Austin Bar/AYLA Leadership Academy truly stepped up for our community, and I look forward to continuing our collaboration in the future.” The Arc of the Capital Area’s Executive Director, Mary VanHaneghan, echoed Representative Rodriguez’s sentiments. “What a great event to bring the
art and legal community together in Austin. The Arc of the Capital Area is proud to have been selected and to have participated in this wonderful event.” In the end, ArtFest was a great event benefitting even greater causes. A special “thank you” to the underwriters and donors who were essential to making ArtFest possible: PLATINUM Speakeasy Compere & Gorman, PLLC Capstone Title Bento Picnic Schulze & Associates
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AUSTIN ATTORNEY DISCOVERS GREENER PASTURES
L
ocal Austin attorney and graduate of the 2016 Austin Bar/AYLA Leadership Academy, Lisa Pittman, has discovered a unique practice niche by becoming a specialist in cannabis law. Austin Lawyer asked Pittman several question regarding her practice area and about the recent legislative session.
AL: Where does cannabis law stand in Texas after the 2017 legislative session? LP: In 2015, Texas enacted the Compassionate Use Act (SB 339), which is an extremely limited program allowing low-THC, high-CBD oil (THC and CBD are among many chemicals found in the cannabis plant) to be prescribed to a subset of children with a particular form of intractable epilepsy, whereby two doctors concur and all other medications have been exhausted for treatment. Only in February 2017 did the Texas Department of Public Safety, the agency charged with promulgating the regulations implementing the statute, adopt final rules for the program and take applications to produce medicine under it. The process has been problematic and still is not off the ground, though the DPS is required to issue at least three licenses to produce and distribute medicine to patients throughout Texas by September 1, 2017. During the 2017 legislative session, Senator Menendez introduced SB 269, and Representatives Lucio III and Isaaks introduced its compan10
AUSTINLAWYER | SEPTEMBER 2017
ion, HB 2107, in the House. These bills paved the way for comprehensive medical marijuana programs overlaid upon the framework of SB 339, and expanded the conditions that could be treated, changed the “prescription” requirement to “recommend,” allowed whole plant marijuana, and added protections from criminal prosecutions for patients and caregivers, among other substantive and technical improvements necessary for SB 339 to function. These bills are similar to what is seen in the Pacific Northwest. Representative Moody also introduced HB 85, addressing the decriminalization of small amounts of marijuana. SB 269 was filed on the first day for the pre-filing of bills but it never advanced. A hearing on whether to send HB 2107 to Calendar Committee was heard in May in front of the Public Health Committee. After hours of testimony lasting until nearly 2 a.m. from patients, parents, doctors, lawyers, veterans, and other community advocates about the proven medical benefits medical marijuana has
In 2019, I predict some major traction on the medical marijuana front as the country reaches a critical mass in approval and legalization, and as the public begins to realize it must participate in the 2018 elections to get the right people in office to vote for these issues. provided for their symptoms and conditions, the Committee voted 7-2 to send the bill to Calendar Committee, where it unsurprisingly died. The Bill gained 77 co-authors and joint sponsors following that hearing, which was truly unprecedented support. Had it made it to the floor, chances are it would have progressed, hence its death by committee. Governor Abbott has proclaimed there will be no medical marijuana on his watch, and has refused to meet with veterans who have organized and requested a meeting with him or his chief of staff on the issue. Suffice it to say, I learned a lot about how politics operates this session! In 2019, I predict some major
traction on the medical marijuana front as the country reaches a critical mass in approval and legalization, and as the public begins to realize it must participate in the 2018 elections to get the right people in office to vote for these issues. Currently, many politicians in Texas are fearful if they vote in favor of regulated marijuana, it will cost them in their next election. Personally, I think most of the politicians are on board with the majority of the public at this point on the issue, but feel constrained by how the conservative agenda requires them to vote. AL: In your view, what are the biggest roadblocks at this point?
LP: Either leadership needs to change or leadership needs to change its mind. Because of the edicts of current leadership, the existing SB 339 faces many roadblocks to functioning, despite its outward appearance of providing medicine to a small group of children. It was drafted to fail. First, the law requires doctors to prescribe the medicine. Cannabis is a Schedule 1 substance under the Controlled Substances Act, so doctors are prohibited from prescribing it. Should a physician be willing to prescribe it (and the doctors qualified to do so under Texas law are legislatively narrow), they risk losing their prescription writing privileges or their license to practice medicine altogether. Access to the medicine is an issue because the Governor is allowing only three providers to service the entire state. The medicine cannot be mailed because a Schedule 1 substance cannot be placed in the US Postal Service, and driving from El Paso or Amarillo to Austin is a risky and expensive proposition for both the patient and provider. The program has the most expensive licensing fees in the nation—$488,000, compared to the next highest state, New York, at $200,000—and other financial requirements make the ability to operate as a business in Texas servicing these patients an extremely expensive and losing proposition. There are few criminal protections for those who can get the medicine. The qualifying condition is extremely narrow—it is intended to be an end-of-life comfort, not a quality of life medicine to allow a child to live seizure-free. Even if the law were written to include more children with epilepsy, or even other conditions, serious cases require a personalized formula of the whole cannabis plant, including the THC component (THC can produce a feeling of euphoria, but CBD does not).
So, even if this law did not have all the legislative “gotchas” in it, the low-THC, high-CBD oil will not treat children with the most serious conditions. Children whose families have the means to do so are fleeing to Colorado, California, Oregon, and Washington for treatment. And they are thriving, by the way. The
place in Texas to consult about it. An Austin attorney who does of-counsel military law for Colorado firm Feldmann Nagel told me they were interested in taking their marijuana practice nationwide, and specifically had their eye on Texas. He recommended I meet with them while I was in Denver, so I did. Soon,
I have actually found those mythic greener pastures, and see a unique opportunity as a woman to become an early leader and authority in this niche of law, not only in Texas, but in the country. programs in states allowing only this low-THC restrictive form of cannabis oil are all failing, perhaps on purpose. The thought by politicians is that if a medication has no THC, then the risk of “diversion” (leaking of the marijuana to anyone who wants it to get high), is reduced. But the plant works as God made it. It is not nearly as medically effective when legislatively spliced as it is in Texas right now. AL: How did you get into this niche practice area? LP: Accidentally. After 15 years as a commercial business trial attorney, I decided to open an alternative, whole-health center run by women for women, called the Well Women Group. I have a revolutionary take on seeing the doctor and learning about plant-based natural therapies, preventative treatment, nutrition, counseling, and the like. To me, cannabis was just another plant like peppermint, lavender, or coconut that has been shown to have beneficial effects on the body for various things. I decided to become involved after being profoundly moved by the testimony of mothers in support of the 2015 Compassionate Use Act. A couple of years ago, I went to a cannabis conference for women in Denver, simply on a fact-finding mission. I wanted to learn more about what cannabis can do so I could provide a
the firm was hired by Louisiana State University to assist in rolling out its medical marijuana production and research plan under Louisiana’s new law, and they asked me to help them with the project. I ended up spearheading it, and thus began my complete immersion and education into all things marijuana: how to start and operate a cultivation facility, accompanying risks, and what was going on in this area around the country. At the time, I just hopped on the bus to see where it would go, but it has been a fun and adventurous ride, and I have greatly enjoyed participating in the drafting and interpretation of brand new laws, fighting for legalization in Texas, and helping spread education and awareness about cannabis in my capacity as attorney rather than business owner—for now. Incidentally, when I went to Denver, I defected from an American Bar Association meeting I was scheduled to attend at the same time. On August 11, 2017, I presented the American Bar Association’s first-ever marijuana law CLE at its annual meeting. I am now incredibly motivated by my work, I relish the daily challenges, and I’ve got to say, the clients are a lot more jovial and appreciative! I have actually found those mythic greener pastures, and see a
unique opportunity as a woman to become an early leader and authority in this niche of law, not only in Texas, but in the country. The cannabis industry is still in its infancy both in the United States and around the world; very few law firms are willing to jeopardize their other business to serve a client that is dealing with a federally illegal substance, though it may be completely compliant under its state’s regulated marijuana program. And, because it has been illegal for so long, there are few experts on the laws. AL: What advice would you give to others who might be interested in this area of law? LP: Jump in! In Texas, because it is still illegal, you need to work with the activists and get involved in lobbying. You need to read about what’s happening in this industry around the country on a daily basis because it’s constantly changing, even in Colorado where it has been legal for quite some time. You must be willing to do a lot of free work for the cause. And in my case, I think you need to go to where the work is. Marijuana is dead in Texas for the next two years, so I’m moving to Colorado. But I’ll be backAUSTIN next session, and I’ll be LAWYER AL AL taking no prisoners!
Lisa L. Pittman, special counsel at Feldmann Nagel. The views, opinions, and content expressed are those of the author and do not necessarily reflect the views or opinions of the Austin Bar Association.
SEPTEMBER 2017 | AUSTINLAWYER
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OPENING STATEMENT
Tricky Possessives Five Possessive Scenarios that Can Trip Up Legal Writers BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET
Which rule should you follow—the journalism rule or the traditional rule? I recommend the traditional rule, but ask your boss. Then be consistent. the Schiesses’ house
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his column addresses five tricky possessive rules: (1) possessives for words ending in s (both plural and singular), (2) joint possessives, (3) possessives for possessive names, (4) possessives for “plurals” that are singular, and (5) attributives. Here we go. (1) To form the possessive of singular words ending in s, you have two choices—what I call the journalism rule and the traditional rule. Under the journalism rule, if the word ends in s, even if it’s a proper noun, just add an apostrophe outside the s: her boss’ car a virus’ impact Wayne Schiess’ office Texas’ policy The journalism rule also applies to initials and to words ending in an s sound: the IRS’ budget Xerox’ revenue Gonzalez’ salary
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Under the traditional rule, add apostrophe + s even if the word already ends in s or an s sound: her boss’s car a virus’s impact Wayne Schiess’s office Texas’s policy the IRS’s budget Xerox’s revenue Gonzalez’s salary In some style guides, the traditional rule has an exception for certain proper nouns ending in s, like Moses’ laws and Achilles’ heel. Check your preferred guide. Which rule should you follow—the journalism rule or the traditional rule? I recommend the traditional rule, but ask your boss. Then be consistent. Consistency is more important than which rule you choose. Under both rules, form the possessive for plurals ending in s or es by adding an apostrophe outside the s: her two bosses’ cars all the viruses’ impacts
(2) When multiple nouns possess one thing, place an apostrophe + s after the last noun before the thing possessed. So McCaffrey and Evans’s lawyer means the one lawyer who represents both. If they have their own lawyers—two lawyers, not one—then use apostrophe + s after both: McCaffrey’s and Evans’s lawyers. (3) To form possessives for entity names that are already possessive, like McDonald’s and St. Anthony’s, do we really write McDonald’s’s shareholders and St. Anthony’s’s students? No. The typical advice is to write around the problem or to ignore the rules and leave the name unchanged. So— shareholders of McDonald’s McDonald’s shareholders students of St. Anthony’s St. Anthony’s students (4) Some nouns are singular but seem plural—the plural and singular forms are the same: American Airlines, United States, headquarters, and premises (meaning property). Form both the singular and plural possessive by adding an apostrophe after the s, like this: American Airlines’ records the United States’ tactics our headquarters’ furniture the premises’ fencing If you’re concerned about confusion, write around the problem: the tactics of the United States, the fencing on the
premises. (5) It can be tricky to handle possessives for organization names and titles, like Farmers Market, Texas Mayors Association, and Veterans Day. Of course, they could be treated as plural possessives with apostrophes: Farmers’ Market Texas Mayors’ Association Veterans’ Day Follow the organization’s lead, and if it uses an apostrophe, so should you. But if there’s no clear answer, you can treat the name as attributive, not possessive. Attributives are nouns used as adjectives. So the market isn’t possessed by the farmers; rather, the noun Farmers describes the market. And the Texas mayors don’t own the association; Texas Mayors tells us what kind of association it is. Finally, Veterans Day doesn’t belong to veterans; it’s a day to honor them. Ultimately, you can usually write AUSTIN around it,LAWYER but it’s also nice AL AL to know the rules.
LOEWY LAW FIRM
BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Kyle Baum William Broome Charlie Carsey Karen Crawford Ornela Deseta Neftali Garcia Eugene Haller Carlota Hopkins-Baul Cheryl Joseph James Matthews Morgan Menchaca Justin Miller Karla Pascarella David Skawin Laura Thetford Isabel Segarra Trevino Zachary Tritico Wilber Trivino Gerald Winters
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Anderson, Ausley-Flores, Davis, Hopson, Joseph, and Leffingwell
AWARDS
Kelly Ausley-Flores was voted as a Best Lawyers: Lawyer of the Year 2017 for the Austin region in the specialty of family law. Ausley-Flores has been board certified in family law since 2000 and is a partner at Ausley, Algert, Robertson, & Flores. NEW TO THE OFFICE
Lisa Davis and Keith Hopson were hired as partners at DuBois Bryant & Campbell. Davis focuses on advising clients regarding the laws and regulations that govern health care. Hopson focuses on environmental matters involving solid waste, hazardous waste, Superfund, and more.
Lindsey Drake joined The Fowler Law Firm. Drake focuses on several areas, including Medicare/Medicaid, probate, and estate planning.
transactions, as well as technology aspects of mergers and acquisitions, joint ventures, and other complex commercial transactions.
Cheryl Joseph joined Scott Douglass McConnico. Joseph focuses on commercial litigation, professional malpractice defense, energy-related disputes, and oil and gas matters.
Frank Leffingwell was named board president of the Brushy Creek Regional Utility Authority. Leffingwell focuses on business transactions, estate planning, and asset protection, with particular emphasis in the representation of closely held and family businesses and highnet-worth individuals.
MOVING ON UP
K. Lance Anderson has been selected to serve on the board of directors for the Texas Medical Device Alliance. Anderson focuses on preparing and negotiating technology and intellectual property-focused
Mary Marek was promoted to partner at DuBois Brant & Campbell. Marek focuses on corporate and transactional matters.
MINORITY BAR SPOTLIGHT
LGBT Scholarship Recipients Announced Scholarship Funded by the Austin Bar Foundation and Austin LGBT Bar Association
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he Austin LGBT Bar Association congratulates the recipients of the Austin Bar Foundation’s second annual LGBT Scholarship: Derek Mergele-Rust of the Texas Tech University School of Law and Adam Greenup of the University of North Texas Dallas College of Law. The scholarship, administered by the Foundation and funded by the Association, gives $3,000 to two law students at Texas law schools with demonstrated commitment to the LGBT community or LGBT legal issues. Both recipients were honored on June 22, 2017 during the State Bar of Texas’ Annual Meeting at a reception hosted
by the LGBT Law Section of the State Bar. The honorable Judge Tonya Parker, 116th Civil District Court, Dallas County, presented the students with their scholarships. SAVE THE DATE: The Austin LGBT Bar Association will host its third annual “Sculpting the Future” reception and scholarship fundraiser on October 18, 2017 at the Umlauf Sculpture Garden in Austin. For more information about the scholarship and reception, visit AUSTIN LAWYER AL AL austinlgbtbar.org.
ABOVE LEFT: Derek Mergele-Rust (left) and Adam Greenup at the LGBT Law Section reception at the State Bar of Texas annual meeting in Dallas. ABOVE RIGHT: Derek Mergele-Rust (middle) receives his scholarship from Gary Schumann (left), chair of the LGBT Law Section and founding president of the Austin LGBT Bar Association and Judge Tonya Parker (right) (116th Civil District Court - Dallas County).
Representing Attorneys
Gaines West
State-wide Practice State Bar of Texas
Grievance Oversight Committee Appointed by the Texas Supreme Court Chair, 2006-2010 Member, 2004-2010
Texas Board of Disciplinary Appeals
Appointed by the Texas Supreme Court Chairman, 2001-2003 Vice Chairman, 1994-1996, 1998-2000 Member, 1992-1996, 1997-2003
State Bar of Texas
Disciplinary Rules of Professional Conduct Committee Member, 1993-1996
Disciplinary Review Committee Member, 1991-1992
Texas Bar Foundation, Fellow State Bar of Texas, Member Brazos County Bar Association, Member Austin Bar Association, Member
Patrick
Keel Former District Judge
patrickkeel.com (512) 293-0300
Mediator Arbitrator Principal Office – 979.694.7000 1515 Emerald Plaza • College Station, TX 77845
Austin – By Appointment – 512.501.3617 1012 Rio Grande St. • Austin, TX 78701
westwebblaw.com SEPTEMBER 2017 | AUSTINLAWYER
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Austin Bar Association Wins Multiple Stars of Texas Bars Awards
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he Austin Bar Association was recognized by the State Bar of Texas at its Annual Meeting on Thursday, June 22, 2017 at the Hilton Anatole in Dallas. The Stars of Texas Bars Awards are presented to recognize local bar associations for outstanding community involvement, commitment to increasing access to justice, and dedication to the profession from May 1, 2016 to April 28, 2017. The Austin Bar was presented with the Award of Merit for best overall programming and projects, the Outstanding Partnership Program for the Lawyers for Literacy Courthouse Book Drive, Best Overall Newsletter for Austin Lawyer magazine, and best Substantive Law Series of Articles on Immigration Issues. The Austin Bar competed in Division IV for local bars with AUSTIN LAWYER AL AL 901 – 5,000 members.
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(from left) Nancy Gray, Austin Bar director of communications; Leslie Dippel, Austin Bar past-president; Frank Stevenson, State Bar of Texas past-president; and DeLaine Ward, Austin Bar executive director.
Congratulations Fifty-Year Lawyers
J
oe Escobedo, Jr., the 2016-17 State Bar chair of the Board from McAllen, made a special presentation at the State Joseph Glen Adams Carvan G. Adkins Robert Fox Barrett Stephen Scott Blair Charles Alvin Brown James E. Brown Waller Thomas Burns II Gary E. Bushell
Bar’s Annual Meeting in Dallas on June 23, 2017. He introduced a group of Fifty-Year Lawyers who began practicing law in 1967.
Warren L. Collins Jr. Fred Conder Stanley Crawford C. M. Davis Fred E. Davis Robert L. Davis Thomas Alan Dyke Ronald Dale Earle
James R. Echols H. Martin Gibson Ronald Kinnan Golemon Roland D. Green III David Greenfield Gabriel Gutierrez Jr. Jerry W. Howeth
More than fifty of the more than 500 Fifty-Year Lawyers were in attendance at the General Session luncheon. These Austin attorneys were among Judge Michael Keasler John R. Kennedy Mark Levbarg Neilyn G. Maloney Mike Manos Wayne D. Meissner Joel Mitchell Mark L. Murdock
those men and women honored for their long-time service to the justice system, the profession, and their clients.
J. Terry Weeks James B. Nance II Rex H. White Jr. SidneyOrton Lesley L. Wilkes Thomas Duwain Patty Jo Wilkes Prichard James Allen Williams Jack Shriver AUSTINLAWYER AL Malcom Carey Smith AL Ben Vaughan III Sarah Weddington
SEPTEMBER 2017 | AUSTINLAWYER
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THIRD COURT OF APPEALS CIVIL UPDATE use of public funds. The court concluded that school failed to raise a fact question on whether Commissioner exceeded his statutory authority by refusing to pay superintendent’s severance. The court affirmed. ADMINISTRATIVE LAW: Court affirms Commissioner’s decision on reassignment.
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.
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The following are summaries of selected Third Court of Appeals’ civil opinions issued during June and July 2017. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of July 31, 2017.
ADMINISTRATIVE LAW: Education Commissioner properly exercised control over charter school. Premier Learning Academy, Inc. v. Texas Educ. Agency, No. 03-17-00064-CV (Tex. App.— Austin June 8, 2017, pet. filed). TEA did not renew school’s charter and Commissioner appointed a conservator. School sought to pay its superintendent’s severance package with school’s remaining state funds. Conservator denied school’s request. School sued, contending Commissioner acted ultra vires. The trial court granted a plea to the jurisdiction. According to the court of appeals, once school’s charter expired, Commissioner acquired “almost plenary power” over school’s 18
AUSTINLAWYER | SEPTEMBER 2017
Jenkins v. Crosby I.S.D., No. 03-15-00313-CV (Tex. App.— Austin June 15, 2017, no pet. h.). Superintendent reassigned Jenkins from principal at an intermediate school to an assistant principal at Crosby High School. Jenkins challenged the reassignment, contending the two positions were not in the “same professional capacity,” and thus entitling her to due-process protections of the contract nonrenewal process. The trial court affirmed Commissioner’s decision. The court of appeals explained that “same professional capacity” does not mean “exact same position.” Factors to consider include differences in authority, duties, and salary. The court rejected Jenkins’s argument that the position of principal is its own “professional capacity.” According to the court, substantial evidence supported Commissioner’s interpretation and conclusion that Jenkins’s reassignment was in the same professional capacity. The court affirmed. ADMINISTRATIVE LAW: Ultra vires claim ripe for adjudication. S.O. v. University of Tex., No. 03-16-00726-CV (Tex. App.— Austin June 15, 2017, no pet. h.) (mem. op.). Eight years after S.O. received her doctoral degree, and after an investigation into alleged academic misconduct, UT informed S.O. that it intended to hold a disciplinary hearing. S.O. sued to enjoin UT from proceeding with a disci-
plinary hearing. The trial court concluded S.O.’s claims were not ripe and granted UT’s plea to the jurisdiction. According to the court of appeals, the controversy was whether UT’s act of conducting a disciplinary hearing to consider revocation of S.O.’s degree was ultra vires. The court reasoned that no purpose would be served by requiring S.O. to complete the disciplinary proceeding before challenging UT’s actions. Further, allowing the hearing to proceed would moot S.O.’s ultra vires claim. Accordingly, the court held that S.O.’s ultra vires claims were ripe for adjudication and reversed and remanded. MANDAMUS: Court grants relief in discovery dispute. In re Durbin, No. 03-16-00583CV (Tex. App.—Austin June 16, 2017, orig. proceeding) (mem. op.). Beneficiaries challenged the validity of a trust and the decedent’s capacity. Beneficiaries sought discovery relating to the trust’s creation, the decedent’s estate-planning file, and information about a pre-death loan from executor’s parents. The probate court denied the requested discovery. The court of appeals concluded that the discovery related to the trust went to the heart of the claims and was discoverable. The court agreed with the probate court, however, that the tax returns were not discoverable. The court concluded that the record did not show an abuse of discretion in denying the other requested discovery. The court granted mandamus relief in part. MANDAMUS: Court holds that redacted tax returns are discoverable. In re Howeth, No. 03-1700286-CV (Tex. App.—Austin June 22, 2017, orig. proceeding) (mem. op.). The underlying
lawsuit involves a dispute over an alleged partnership. Real parties in interest sought discovery of relator’s income tax returns, schedules, and all documents given to relator’s accountants to prepare the returns. The trial court ordered production of the requested documents with a protective order that such documents could not be filed without leave of court. The court of appeals noted the different burden of proof for production of tax returns and accountant documents. The party seeking such discovery has the burden to show their materiality and relevance. The court determined that the tax documents were relevant to show how relator treated various property interests, and were the only available source for the information. The trial court abused its discretion, however, by not allowing redaction of irrelevant information. The court granted mandamus relief in part. APPELLATE PROCEDURE: Trial court abused discretion in refusing to stay enforcement of judgment. Allibone v. Robinson, No. 03-17-00357-CV (Tex. App.—Austin June 29, 2017, no pet. h.) (mem. op.). Allibone sought declaratory relief and a protective order from Medical Board’s subpoena of patient records. The trial court denied Allibone’s request to stay enforcement of the order pending appeal pursuant to TRAP 24 and ordered Allibone to comply with the subpoena. According to the court of appeals, if a trial court’s refusal to suspend enforcement of a judgment causes the appeal to become moot, then an appellant has been denied an effective appeal and abuse of discretion is shown. According to the court, the central issue was whether Allibone must produce the requested
records. Once he complies with the subpoena, any judgment concerning the subpoena will have no practical legal effect and his appeal would be moot. Accordingly, the court reversed and remanded to determine the type and amount of security. INSURANCE: Court interprets policy to deny water-damage coverage. Safeco Ins. Co. v. Moss, No. 03-16-00879-CV (Tex. App.— Austin June 29, 2017, no pet.
h.) (mem. op.). Moss sustained damage to his home from water that flowed through an electrical conduit. Safeco denied coverage, contending the surface water exclusion applied. The trial court granted summary judgment for Moss and denied Safeco’s motion. The dispute centered on whether the surface water lost its status as surface water when the damage occurred. In this permissive appeal, the court of appeals looked to the lead-in clause,
which excluded damage from surface water if the loss was caused directly or indirectly by surface water. Thus, even if the water changed character when entering a man-made structure, the surface water indirectly caused the loss and thus the damage was excluded from coverage. The court reversed and rendered. ADMINISTRATIVE LAW: Immunity bars declaratory judgment action.
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City of New Braunfels v. Y.C. Partners, Ltd., No. 03-1600249-CV (Tex. App.—Austin June 29, 2017, no pet. h.). The underlying dispute involves competing bidders on a city construction project. After City awarded contract to Yantis, Carowest sued, seeking declaratory relief for City’s violation of the open meetings act and competitive bidding requirements. The trial court entered judgment for Carowest. City claimed Carowest’s claims were barred by immunity. The court of appeals concluded that TOMA §551.142 and Local Gov. Code §252.061 waive immunity only for injunctive and mandamus relief; neither waives immunity for declaratory relief as awarded here. The court rejected the application of the law-of-thecase doctrine, and based on recent Texas Supreme Court immunity cases, reversed its earlier ruling on jurisdiction. The courtAUSTIN vacatedLAWYER the judgAL AL ment and remanded.
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The Expert’s Expert. Randall Wilhite is Board Certified in Family Law by the Texas Board of Legal Specialization. He is also a Fellow in the American Academy of Matrimonial Lawyers as well as the International Academy of Family Lawyers. As a Certified Public Accountant and an Adjunct Professor of Law at the University of Texas School of Law, Randy serves as trial counsel and co-counsel throughout the State of Texas on issues of business valuation, characterization of assets, premarital agreements, tracing, business distributions and trusts. Randy is also one of the most accomplished and experienced mediators and expert witnesses in the State. He is regarded as one of the most distinguished family law attorneys in Texas.
Randall Wilhite Senior Partner; Family Law; Litigation; Arbitration; Complex Asset Division; Business Valuation P: 512.610.2335 | E: rwilhite@fullenweider.com
HOUSTON | AUSTIN
6034 W. Courtyard Drive, Suite 140, Austin, TX 78730 FWfamilylawyers.com
THIRD COURT OF APPEALS CRIMINAL UPDATE
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The cases summarized are from February 2017 and subsequent histories are current as of August 1, 2017.
SEARCH AND SEIZURE: Person who took camera from defendant’s apartment without his permission did not commit theft so as to render evidence obtained from camera inadmissible. Hines v. State, No. 03-1600319-CR (Tex. App.—Austin Feb. 9, 2017, no pet.) (mem. op., not designated for publication). Appellant was convicted of aggravated sexual assault of a child. The evidence against him included images recovered from a camera that had been turned over to law enforcement by defendant’s ex-girlfriend. Ex-girlfriend had loaned the camera to Appellant, who had failed to return it to her. The camera was subsequently found in Appellant’s apartment by his wife, while she was retrieving some of her belongings from the apartment. Wife gave the camera to Ex-girlfriend, who in turn gave the camera to law enforcement. Incriminating images were discovered on the camera. Appellant moved to suppress the images, asserting that the Wife had committed the offense of theft by taking the camera from his apartment without his permission and giving it to Ex-girlfriend. Thus, according to Appellant, the evidence was illegally obtained and inadmissible. The trial court denied the motion to suppress. On appeal, Appellant argued that Wife’s act of taking the camera from his apartment constituted theft because Wife intended to deprive him of the property, and as between him and Wife, he had “greater right to possession of the property” and therefore was its “owner.” The appellate court disagreed. Noting that “owner” is defined in the Penal Code as a person who “has title to the property, possession of
the property, whether lawful or not, or a greater right to possession of the property than the actor,” the court explained that, although Appellant might have had a greater right to possess the camera than did Wife, it was undisputed that Ex-girlfriend owned the camera. “Thus, [Ex-girlfriend] had a greater right to possession of the camera than anyone else, including [Appellant], and was the ‘owner’ of the camera for purposes” of the theft statute. The court concluded, “[Wife] removed the camera from the apartment at [Ex-girlfriend’s] request in order to return it to her. Thus, [Wife] did not intend to deprive the camera’s owner— [Ex-girlfriend]—of the property. Instead she intended to return that property to its owner. Because [Wife’s] appropriation of the camera was with its owner’s consent, it was not unlawful.” VOLUNTARINESS OF CONSENT: Appellant’s consent to submit breath specimen voluntary despite arresting officer’s apparent misstatement of law. Podowski v. State, No. 03-1500109-CR (Tex. App.—Austin Feb. 24, 2017, no pet.) (mem. op., not designated for publication). Appellant was convicted of driving while intoxicated. During her arrest, the arresting officer requested a specimen of her breath. Prior to giving consent, appellant asked the officer to explain the consequences of refusing consent. The officer answered, “It extends the amount of time in which your license is suspended.” Appellant replied, “Uh, in which case is my license not going to be suspended at all?” The officer responded, “None.” Appellant subsequently consented to provide a specimen of her breath, which revealed a blood-alcohol level above the legal limit. Prior to trial, appellant filed a motion to suppress the breath-test results, arguing that the officer’s
response of “None” to her inquiry regarding the consequences of refusal constituted a misstatement of law that made her consent to provide a breath specimen involuntary. The trial court denied the motion to suppress. On appeal, the appellate court concluded the record supported the trial court’s finding that, although the officer’s response may have incorrectly suggested that Appellant’s license would be suspended regardless of whether she refused or consented to provide a breath specimen, “the evidence did not demonstrate that any such misinformation overbore her will and critically impaired her capacity for self-determination so as to render her consent involuntary.” In fact, the court concluded, “the trial court could have reasonably inferred that the officer’s misstatement had the effect of overstating the potential adverse consequences of compliance, thereby rendering it less likely that [Appellant] would decide to comply.” This is because refusal would have resulted in a 180-day minimum suspension, whereas compliance resulted in a 90-day minimum suspension.
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.
Additionally, the appellate court observed that “no one statement or action should automatically amount to coercion such that consent is involuntary—it must be considered in the totality” of the circumstances. The totality of circumstances in this case, including the absence of any threats by the officer to procure Appellant’s consent, supported the trial court’s finding that AUSTIN LAWYER AL AL consent was voluntary.
SUZANNE COVINGTON Senior District Judge
SPECIAL JUDGE BY ASSIGNMENT Arbitration Mediation 512-923-8705 suzanne.covington@judgecovington.com www.judgecovington.com SEPTEMBER 2017 | AUSTINLAWYER
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FEDERAL CRIMINAL COURT NEWS
The Rise and Fall of Mandatory Minimums BY DAN DWORIN AND DAVID PETERSON
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n state court criminal practice, it is customary for the parties to agree on the specifics of punishment as part of any plea bargain—the length of a prison sentence, for example. In federal court, agreements which purport to bind the judge in any way are rarely used (unless the prosecutor fears the judge might give a lower sentence than called for by the sentencing guidelines), and are often seen negatively by at least some judges. Sentencing in the federal system starts, and often ends, with application of the Sentencing Guidelines, which dictate an
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“advisory” range of punishment (almost always a sentence of imprisonment) based on factors that include the offense charged and specific aggravating factors of the defendants proven conduct, the most significant part of an agreement for a defendant is often over what the offense of conviction will be, and what facts the parties can agree to that will lend some predictability to sentencing. Due to the proliferation (by Congress) of mandatory minimum sentences for some of the most frequently-charged federal crimes (drug distribution offenses, chiefly), the prosecu-
tion has enormous leverage in negotiations. For example, if a drug defendant faces a mandatory minimum of 10 years (and up to life) imprisonment for possession with intent to distribute various drugs, but the prosecutor offers to let him plead guilty to a count with no mandatory minimum and a statutory maximum of 20 years, it would take a very strong-willed defendant to turn down such an offer, even if a substantial prison sentence is still the likely outcome. Thus, even if a judge feels that the mandatory minimum is an unnecessarily harsh sentence, he or she cannot do anything about it unless the prosecutor agrees to a “charge bargain” to avoid such a result. As a result, federal prosecutors have tremendous power to determine the outcome of a given case, unless the defendant is acquitted at trial, which is very rare. Soon after being confirmed by the Senate, Attorney General Jeff Sessions announced a series of changes to Department of Justice policies concerning criminal charges which had been enacted by former Attorney General Eric Holder. Although it’s never really clear to most federal practitioners exactly how much weight individual assistant United States attorneys actually give to the policy pronouncements out of Washington, it certainly is fair to assume the tone is set at the top. Sessions’ statement was as follows, concerning mandatory minimums: “…it is a core principle that prosecutors should pursue the most serious, readily provable offense…By definition, the most serious offenses are those that carry the most substantial guideline sentence, including mandatory minimums.”A Contrast that with the so-
called “Holder memorandum,” in which line prosecutors were discouraged from seeking convictions under mandatory-minimum statutes unless the facts of the case or the defendant’s criminal history were particularly egregious.B Former federal judge Nancy Gertner has called mandatory minimum sentences “cruel and ineffective.”1 She and former federal prosecutor Chiraag Bains note the United States Sentencing Commission found that earlier release from lengthy drug sentences did not have an effect on recidivism rates. That is, the widespread use of mandatory minimum sentences doesn’t protect the public. But it definitely AUSTIN LAWYER AL 2 AL costs a lot of taxpayer money. Footnotes: 1. Nancy Gertner and Chiraag Bains, “Mandatory minimum sentences are cruel and ineffective. Sessions wants them back,” May 15, 2017. www. washingtonpost.com/posteverything/ wp/2017/05/15/mandatory-minimum-sentences-are-cruel-and-ineffective-sessions-wants-them-back 2. Recent data show that the annual cost of housing an inmate in the Bureau of Prisons is nearly $32,000. The cost of supervision is slightly over $4,000 per year.
Endnotes: A. Memorandum for all Prosecutors, May 27, 2017, Office of the Attorney General, U.S. Department of Justice B. Memorandum to United States Attorneys and the Assistant Attorney General, August 12, 2013, Office of the Attorney General, U.S. Department of Justice
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. David Peterson is an assistant federal public defender for the Western District of Texas. Any views expressed are his views only and not that of the Office of the Federal Public Defender. The views, opinions, and content expressed are those of the author and do not necessarily reflect the views or opinions of the Austin Bar Association.
ENTRE NOUS
Let (the Right Kind of) Freedom Ring BY CLAUDE DUCLOUX
A
s we lament the gridlock and failures of our elected state and national representatives to show cooperation and statesmanship, there appears to be an interesting political reality where the citizens and their elected representatives are cooperating more than ever. Whether it be by insistence, exigency, frustration, or distress, CITIES are becoming the chief analysts and brokers of their own solutions. Study after study, including analysts from the World Bank, Smithsonian, and business consortia are issuing reports stating cities are now better at handling environmental issues, creating health care opportunities, and modeling transportation and other infrastructure. The message is, “Hey, big government, get out of our way. We got this.” Well. Obviously, this must stop. How can people possibly make correct decisions, unfettered by big-money lobbyists, unlimited corporate campaign contributions from anonymous sources, and the blessings of tax breaks? This independence stuff is clearly a “job killer” (did I say that right?) How can we move forward without the tonedeaf assistance of legislative masters, determined to “free” us with intentionally and deceptively renamed bills, to bluff the public into believing they will accomplish a different goal? An example is the “We’reGonna-Fix-This-TerribleScourge-Called-Obamacare” bill, a departure from its original title, “The Americans for Doit-Yourself Surgery,” which was combined with the Senate version, “The Walk-It-Off, You Weenie, Health Care Act.” 24
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Not to be outdone, the “Lege” seemed fixated on brandishing our rights to cast off the “abuses and usurpations” of government, allowing us to smell freedom wherever we swing our gun belts. Our disdain, as Texans, for being burdened by some governmental regulations led Governor Abbott famously to proclaim, in a speech to “Freedom Works Texas” that his typical workday was to, “…go to the office, I sue the federal government, and I go home.” Yeah! Dang right! No government should be telling us Texans what to do! But wait. I feel a dissonance in “the Force.” It seems these same Champions of Freedom have very different opinions when the path to self-governance chosen by some of us locals clash with their ideological vision of a free Texas. These same protectors of freedom are pretty insistent that their freedoms should supersede our freedoms. I know that I need some expert who is able to explain this in a way even I can understand, so I turned to Hans Rechterflugel, policy director for American Liberty Tea Forum (ALTF), to assist me in unwinding the “Freedom” aspects of numerous statutes which are lined up to affect all of us. Here’s a transcript of our recent webcast interview: CD: Welcome Mr. Rechterflugel. I’m looking forward to your assistance today on a myriad of issues. Hans: Happy to be of service. Can’t stop the loving that freedom! CD: Great, so let’s jump right in. I understand the goals of ALTF are “self-direction, self-governance, and personal choice.” Did I read that correctly?
Hans: Yes. This is a deeply held American principle. It’s why we sue anyone who tries to interfere with our right to local control. CD: Okay. So starting with local control, the people of the city of Denton decided to ban fracking in the city due to the many dangers of water table pollution, and instability of the substrata. But the Legislature nullified that exercise of freedom. Why? Hans: That was the wrong kind of freedom. That would clearly interfere with the freedom rights of oil and gas companies. Interference is not freedom. CD: But, why can’t locals decide to implement codes and regulations which suit the needs of their own communities? Hans: It’s just too confusing. I mean, if I use a plastic trash bag in Lufkin, do I need a permit to carry it to Austin? You can’t ban them in some cities and not others. CD: Really? Why?
Hans: Because it’s confusing. Confusion is not freedom. CD: But numerous studies are finding that cities around the world have become the chief problem-solvers for addressing their citizenry and environment. Aren’t those incredibly important goals? Hans: Not if they conflict with statewide ideological objectives. CD: Are you saying that there’s a difference between“statewide freedom” and “local freedom?” Hans: Sure. Statewide freedom is superior. It pre-empts local wishes. It smells better, too. CD: Well, federal law pre-empts state law, yet your group constantly sues the federal government complaining of it imposing its will on Texas, yet the state of Texas is imposing its will over locals cities, counties, and citizens on a plethora of issues. Hans: It’s because we’re better at securing freedom, and everyone needs to do things OUR way. CD: Wait: This legislature has
proposed or passed legislation saying cities can’t try to save their trees, can’t impose ecology guidelines, or other measures which are overwhelmingly approved by those cities’ residents. Not only that, they overruled a crowded city’s right to ban texting while driving. Hans: Unnecessary. CD: Even if more than 400 Texans per year are killed in texting accidents? And, what about seeking security for rideshare passengers by suggesting better background checks? How do you square that with your passion for local control? Or criminalizing restroom use? How on earth is that an exercise of freedom? Hans: Well, bathroom use is for safety. CD: So is Uber security and texting while driving. Hans: But texting while driving is personal freedom. We’re all for personal freedom.
CD: Like restroom use. Hans: No, that’s safety again. CD: Okay, you’re talking in circles now. The sponsor of the bathroom bill could not relate a single incident, not one, where a transgendered individual presented a danger in a restroom. Hans: Well, we’re going to keep it that way. CD: Can you tell me that all these new freedoms actually benefit the people of the State of Texas? Hans: Absolutely, we have freed Texans from the burdens of Medicaid coverage, education, women’s health services, and equal access to the ballot box. CD: Who are the biggest winners? Hans: Freedom smellers. CD: I thinkLAWYER I’m smelling it now. AUSTIN L AL Keep the A faith. The views, opinions, and content expressed are those of the author and do not necessarily reflect the views or opinions of the Austin Bar Association.
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SEPTEMBER 2017 | AUSTINLAWYER
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PRACTICE POINTERS
Mastering Electronic Discovery Proportionality is the Polestar, and Metadata May Not Be “the New Black” After All BY KENNON WOOTEN, SCOTT DOUGLASS & MCCONNICO
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n January 1, 1999, the Texas Supreme Court paved the way for the future by adopting Texas Rule of Civil Procedure 196.4, which applies to requests for production of “data or information that exists in electronic or magnetic form.”1 Without the guidance of any existing rules on the discovery of electronically stored information (ESI) and with very few cases in the country pertaining to ESI, the Court crafted standards for requesting ESI, responding to such requests, and issuing orders requiring more than “reasonable efforts” to produce requested ESI.2 In the 18-plus years that have passed since Rule 196.4’s adoption, the volume of ESI has expanded dramatically, and the fragility of certain ESI has become evident. Electronic discovery is thus playing “an increasingly significant role in litigation and, often, at significant expense.”3 While the text of Rule 196.4 has not changed since 1999, case law has elucidated that text and kept Texas’s electronic-discovery standards in line with comparable federal standards that have developed more rapidly. Thus, understanding how Rule 196.4 works requires knowledge extending beyond its text (and the text of other Texas discovery rules) to applicable case law and to comparable standards pertaining to ESI in Federal Rules of Civil Procedure 26 and 34. At a minimum, all Texas practitioners confronting electronic-discovery issues should be familiar with the two Texas Supreme Court opinions addressing Texas’s electronic-discovery requirements and their interplay 26
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“all discovery is subject to the proportionality overlay embedded in our discovery rules and inherent in the reasonableness standard to which [Rule 196.4] is tethered.” with federal requirements. Issued in 2009, In re Weekly Homes, L.P. delineates the proper procedure under Rule 196.4, sets forth standards governing a party’s direct access to another party’s ESI, and stresses the need for parties to “make reasonable efforts to resolve [electronic-discovery disputes] without court intervention.”4 Issued on May 26, 2017, In Re State Farm Lloyds reflects the Court’s second foray into the electronic-discovery realm.5 Due to its recency and detailed guidance, this opinion is the focus of the remainder of this article. In re State Farm Lloyds clarifies that “neither party may dictate the form of electric discovery.”6 In this case, the requesting party sought ESI in native form including metadata, and the responding party offered to produce information in searchable static form instead, reasoning it was “more convenient and accessible given its routine business practices.”7 After acknowledging that “a weak presumption against the production of metadata has taken hold,” perhaps because of “metadata’s status as ‘the new black,’ with parties increasingly seeking its production in every case[,]”8 the court explained when such production may truly be warranted.9 Importantly, the court stressed that “all discovery is subject to the proportionality overlay embedded in our discovery rules and inherent in the reasonableness standard to which [Rule 196.4] is tethered.”10 The court
then applied the proportionality principles in a manner that “aligns electronic-discovery practice under the Texas Rules of Civil Procedure with electronic-discovery practice under the Federal Rules of Civil Procedure.”11 The court held that, if a responding party objects to the requested form for ESI’s production because unreasonable efforts are required to produce it in that form and a “reasonably usable” alternative form is readily obtainable, then the trial court must conduct a case-specific analysis balancing the following factors: (1) the likely benefit of producing ESI in the requested form; (2) case-specific needs; (3) the amount in controversy; (4) the parties’ resources; (5) the importance of the issues at stake in the litigation; (6) the importance of the proposed discovery in resolving the litigation; and (7) any other articulable factor bearing on proportionality.12 Finally, the court explained that—even when “the burden or cost [of producing ESI in the requested form] is unreasonable compared to the countervailing factors”—a trial court may order the production if “there is a particularized need for otherwise unreasonable production efforts and . . . the court orders the requesting party to ‘pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.’”13 When the court issued In re State Farm Lloyds, its rule-advisory committee (the Supreme
Kennon is a partner at Scott Douglass & McConnico LLP. She served previously as the Rules Attorney for the Texas Supreme Court and has co-authored a book about discovery—Robert K. Wise & Kennon L. Wooten, Texas Discovery: A Guide to Taking and Resisting Discovery Under the Texas Rules of Civil Procedure (Tex. Lawyer 2016).
Court Advisory Committee) was assessing whether to modify Texas discovery rules to align more closely with federal discovery rules. That assessment is ongoing. Practitioners should be on the lookout for rule amendments in the not-too-distant future and keep in mind that In re State Farm Lloyds may preview what is to come in rule amendments adAUSTINLAWYER AL AL dressing electronic discovery. Footnotes: 1. Tex. R. Civ. P. 196.4. 2. See Nathan L. Hecht, Taking Point on E-Discovery: Texas Rule of Civil Procedure 196.4, 51 THE ADVOC. (Tex.) 18 (2010) (analyzing the history and text of Rule 196.4). 3. In re State Farm Lloyds, 520 S.W.3d 595, 598 (Tex. 2017) (orig. proceeding). 4. 295 S.W. 309, 322 (Tex. 2009) (orig. proceeding). 5. 520 S.W.3d at 598–99. 6. Id. at 599. 7. Id. 8. Id. at 605 (quoting U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 246 (S.D. Cal. 2015)). 9. Id. at 606, 608–10. 10. Id. at 599 (emphasis added). 11. Id. at 612. 12. Id. at 607–12. 13. Id. at 607 (footnotes omitted) (quoting Tex. R. Civ. P. 196.4).
LEGISLATIVE UPDATE
The 85TH TEXAS LEGISLATURE BY ALICIA G. KEY
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he 85th Regular Session adjourned on May 29. Of the 6,631 bills filed, only 1,211 passed, and 50 of those were vetoed by the governor. The bills listed below are just a few of those that may be of interest to attorneys. The text of each bill is available by entering the bill number in the “Search Legislation” field at Texas Legislature Online: www.capitol.state.tx.us/ Home.aspx. The September issue of the Texas Bar Journal will include a more detailed legislative update identifying major changes to specific areas of law. See also the Legislative Update of the Texas Judicial Council at: www.txcourts.gov/ media/1438072/85th-legislative-report.pdf.
STATE BAR SB 302 – Continues the State Bar in existence for 12 more years, and includes provisions: • retaining the rules referendum vote for State Bar members, including a referendum for any dues increase exceeding 10 percent, more frequently than every six years; • modifying the grievance process, adding new investigative tools, sanction guidelines, and greater opportunity for earlier resolution of complaints; and • requiring the State Bar to post more data on its website about attorney disciplinary actions. HB 1020 – Allows an inactive member of the State Bar to provide volunteer legal services.
COURTS SB 42 (the Judge Julie Kocurek Judicial and Courthouse Security Act of 2017) – Enhances the security of courts and judges and includes provisions: • requiring municipal judges
and local administrative judges to establish court security committees; • concerning certification of court security personnel; and • impacting judges’ personal security and privacy.
es the admissibility of confessions, line-up identifications, and prior offenses committed by certain witnesses.
SB 1233/HB 1480 – Expands the mandamus jurisdiction of the courts of appeals to allow the issuance of a writ against a judge of a statutory county court, a statutory probate court, or an associate judge appointed under the Family Code.
SB 1326 – Establishes procedures to facilitate the early identification and treatment of pre-trial detainees with mental illness or intellectual disability.
SB 1329 – Creates six new district courts in the state, including two for Travis County: the 459th, with preference for civil matters, on 10/1/17 and the 460th, with preference for criminal matters, on 10/1/19. HB 214 – Requires the Supreme Court and the Court of Criminal Appeals to post a video recording of each oral argument and public meeting on the courts’ websites. HB 1761 – Modifies the jurisdiction of the Supreme Court. Eliminates enumerated categories of jurisdiction over interlocutory and final orders, instead allowing the court to review any appealable order that presents an important question of law, unless the decision of the court of appeals is made final by statute.
CRIMINAL LAW AND PROCEDURE HB 34 – Implements recommendations of the Timothy Cole Exoneration Review Commission. Requires prosecutor’s offices to track testimony and record custodial interrogations related to certain felonies. Requires the state to make disclosures to a defendant if it intends to introduce statements made by the defendant to a fellow inmate. Address-
SB 292 – Establishes a jail-diversion grant program for individuals with mental illness.
SB 1913 – Improves the assessment and collection of criminal court costs. Requires judges to ask about a defendant’s ability to pay, expands community service options that a judge may impose, and increases the minimum credit for jail or community service from $50 to $100 per day.
Alicia G. Key, local attorney and former director of the Child Support Division, Office of the Attorney General
cities. Requires local law enforcement to comply with federal immigration authorities and allows police to question detained people about their immigration status.
CIVIL MATTERS
HB 25 – Eliminates straightparty voting effective 1/1/20.
HB 4, HB 5, HB 7 and SB 11 – Child Protective Services reform. HB 1774 – Revises procedures for first-party insurance claims arising from property loss or damage. Requires a 60-day pre-suit notice, changes the method for calculating attorney’s fees, and prohibits attorney’s fees if the representation results from barratry or if damages awarded are less than 20 percent of the damages alleged.
HB 62 – Prohibits use of a portable wireless communication device to read, write, or send text messages while operating a moving vehicle, except when reporting illegal activity or summoning emergency help, navigating using GPS, or activating a function that plays music. HB 100 – Establishes statewide ride-hailing regulations and overrules local ordinances.
Special Session: During the 30-day special session, 508 bills were filed and 12 bills passed, including two “Sunset” bills (SB 20 and SB 60) to avoid the abolishment of certain state agencies. Other bills receiving favorable treatment related to: removal of trees on private property; abortion; public school finance; voter fraud; municipal annexation; do-not-resuscitate orders; and maternal health and AUSTIN LAWYER AL AL safety.
SB 1096 – Improves the guardianship system, requiring all non-attorney guardians, corporate fiduciaries, and certified guardians to receive training, undergo criminal history background checks, and register with the Judicial Branch Certification Commission. It also authorizes the creation of a statewide guardianship registry.
OF INTEREST SB 4 – Outlaws sanctuary
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SOCIAL MEDIA SAVVY
Developing a Professional Social Media Strategy BY RACHAEL K. JONES
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ith summer winding down and school starting back up, the beginning of the academic year can be an excellent opportunity to focus on new goals and projects. Now is a great time to develop an official social media strategy. What is a social media strategy, and why should I have one?
The concept of a social media strategy is based on the premise that everything you post professionally on social media should contribute to a comprehensive and consistent plan, with specific goals and recognizable themes. An intentional and wellplanned social media strategy can set you apart from many other lawyers and firms. It can help you provide value, maintain a polished and professional web presence, make connections, and demonstrate thought leadership. It can also help your ideal clients find you and help you build and develop professional relationships. An effective social media strategy consists of two primary components: (1) a content plan, which establishes what you’re going to post about; and (2) an implementation plan, which sets forth how you’re going to put your content plan into action. Developing a Content Plan
Creating a content plan involves determining appropriate topics and themes for your social media posts, then coming up with ways to develop meaningful content that is consistent with these topics and themes. Here are some brainstorming ideas: • Focus on Your Target Audience. Begin by identifying your target audience—who 28
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are you trying to reach? For most of us, the target audience probably consists largely of those mythical creatures known as “ideal clients.” So think about your ideal clients. Who are they? When they need an attorney, what exactly are they searching for? The key here is to focus on what your audience is looking for, not what you think is interesting (or even necessarily relevant). • Identify Keywords and Key Phrases. Make a list of five to ten keywords or key phrases that best reflect the actual needs of your target audience. This is helpful not only for maintaining internal consistency, but also for Search Engine Optimization (SEO) purposes, as unique and specific key phrases can improve your SEO ranking. A great way to come up with key phrases is to think about the search terms your target audience is likely to use. Once you’ve compiled your list, you can use each item as a basis for generating content. • Build a Robust FAQ. Keep track of questions that you consistently hear from clients, and begin posting detailed (but generic) explanations on these issues. Use the same questions to create an FAQ page on your social media profile or professional website. Your FAQ page should provide relatively brief answers that also include links to your in-depth posts. An added bonus to this strategy is that the click-throughs can also help with SEO. • Curate Content from Others. Review posts from colleagues and competitors for ideas and inspiration, or
even re-post links to others’ content in its entirety. Giving a shout-out to someone else in this way can help put you on their radar, and may even make them more inclined to return the favor later. You can use an RSS aggregator, such as Feedly (feedly.com), to collect posts from various blogs and websites of interest all in one place, and/or set up Google Alerts based on certain keywords or key phrases (such as the ones you identified above). • Always Have a Call to Action. Every social media post should end with a call to action, such as an opportunity to subscribe to a newsletter, fill out a contact form for more information, or request a consultation. Instituting an Implementation Plan
Now that you’ve got some killer content, you need to decide how, when, and where you’re going to share it with the world. This is where the implementation plan comes in. Here are some tips for an effective implementation plan: • Go to Your Audience. Figure out which social media platform(s) your target audience typically uses and focus your efforts on the one or two platforms where your audience spends the most time. If you’re not sure, try posting the same content on multiple platforms to see which ones appear to be most effective. • Consistency is Key. Post at regular intervals. Consistency is more important than frequency, so start small. Try posting on a weekly basis for a month or so, then evaluate whether a more (or less)
Rachael K. Jones is an attorney at The Carlson Law Firm and a member of the AYLA Board of Directors.
frequent schedule seems feasible. • Plan Ahead. Create an editorial calendar with dates and proposed topics for upcoming posts. You may also want to consider social media management software such as Buffer (bufferapp. com) or Hootsuite (hootsuite. com), which allow you to write posts whenever it’s convenient and then schedule them to be posted automatically at a particular date and time. • Build and Maintain a “Content Reserve.” In law and in life, things happen. So it’s a good idea to have some pre-written posts stashed away in case of emergencies. Try to contribute to your content reserve on a regular basis. Do you have questions related to lawyers and social media, or a particular topic you’d like to see addressed? Please feel free to share your thoughts emailing AUSTINby LAWYER AL AL rkjones983@gmail.com.
New Courts Approved for Travis County
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n July 13, 2017, Governor Greg Abbott signed SB 1329 into law authorizing the creation of new civil and criminal district courts for Travis County. The 459th Civil District Court will be authorized to begin hearing cases on October 1, 2017, with the 460th Criminal District Court following on October 1, 2019.
floor of the HMS Courthouse, and Judge Rhonda Hurley of the 98th Civil District Court will relocate her courtroom to the Gardner-Betts Juvenile Justice Center. “We are long overdue for new civil and family courts and the creation of this new court is certainly a step in the right direction to meet the growing needs of this community,” said Judge Livingston.
We are long overdue for new civil and family courts and the creation of this new court is certainly a step in the right direction to meet the growing needs of this community. —JUDGE LORA LIVINGSTON The Honorable Lora Livingston, Travis County Local Administrative Judge, reports the new 459th Civil District Court will be located on the fifth
“The Travis County District Courts are looking forward to the creation of the 460th District Court in October of 2019,” said the Honorable
Brenda Kennedy of the 403rd County, and the increase in Criminal District Court. “This numbers of our caseloads, the Court, along with the others that newest court should assist us have been discussed with our in being able to more efficientCommissioners’ Court, is one ly and expeditiously handle of 3.7 Criminal District Courts the setting and disposition of that the Office of Court Admin- AUSTIN felonyLAWYER criminal cases in Travis AL AL istration has reported our Travis County.” County Criminal District Courts need. Considering the rapidly growing population of Travis
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Robert Calvert Inns of Court Hosts Mentoring Program Students Participate in “Mentoring A Student” Program at Travis High School
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he Austin chapter of the Robert Calvert American Inns of Court has completed its fourth year of participating in “Mentoring a Student” (MAS) at Travis High School in Austin Independent School District. Founded by Judge Orlinda Naranjo, a former president of the Inn, MAS is a unique mentoring program connecting Inn members with students from Travis High School. Located just a few minutes from downtown Austin, Travis High School’s student population is 96 percent minority and 85 percent economically disadvantaged. Inn members met once a month with approximately 30 students enrolled in a principles of law/criminal justice class. In addition to jury service, some topics discussed were: “Driven to Distraction – The Physical and Legal Effects of Multi-Tasking”; “No Room at the Inn – Recent Development in Immigration Law”; and “Now That You Are 18”, an overview of basic law covering such things as apartment leases, voting, credit, and drinking.
members met with the MAS students to prepare them for their roles as witnesses and lawyers, and discussed the handling of evidence which included texts and a torn blouse. Yanetzy, a high school senior, said, “The feeling of presenting evidence to a jury and obtaining a conviction is priceless. I hope this program continues for generations to come. They will enjoy every second of it, just like I did.” Anthony Chase, the instructor for the Travis High class stated, “Thanks to the MAS program, my students became more engaged in my classroom and more enthusiastic about pursuing a possible legal career.” Inn members were equally as appreciative. Tom George J.D, LL.M, Ph.D, a Master in the Robert Calvert Inn, and former professor of health law at the UT Law School and McCombs School of Business, said, “The astonishing thing for me was the transformation in some of the students from the first introductory class session for preparation of witnesses, testimony, and assignment of roles to the time of the actual
The feeling of presenting evidence to a jury and obtaining a conviction is priceless. I hope this program continues for generations to come. They will enjoy every second of it, just like I did. —TRAVIS HIGH SCHOOL MAS STUDENT The highlight of the year for both Inn members and students was the mock trial on dating violence. On May 11, 2017, the mock trial was held at the Travis County Courthouse before middle and high schools students with Judge Naranjo presiding. Prior to the mock trial, Inn
trial in the court room. In some instances, it was clearly visible in their speech, dress, and body language; and at the trial, total involvement in the trial procedure.” Matt Garcia, also a Barrister in the Robert Calvert Inn and Mentoring Committee chair,
TOP: (from left) Judge Orlinda Naranjo, Paula Pierce, Jane Atwood, and Judge Raul Gonzalez with scholarship winners Sarah Bonee and Yanetzy Ortiz. BOTTOM: Travis High School MAS Program participants with volunteers at mock trial.
shared, “The students are fantastic and I feel like I am making a difference. It is especially rewarding to see how the students progress throughout the year in their understanding of how the law impacts their lives and how they can initiate positive change.” The program could not have been a success without the many Inn members who volunteered and the MAS committee, consisting of Judge Raul Gonzalez, Matt Garcia of Barnett & Garcia, Paula Pierce of the Law Offices of Xavier Medina, Anthony F. Arguijo of Scott, Douglass, & McConnico,
and Judge Naranjo. The Inn and American Board of Trial Advocates Austin Chapter awarded two $500 college scholarship to Yanetzy Ortiz and Sarah Bonee, both graduating MAS seniors. The girls will be roommates while attending Texas AUSTIN State University in San LAWYER L AL Marcos in theAfall.
SEPTEMBER 2017 | AUSTINLAWYER
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AUSTIN YOUNG LAWYERS ASSOCIATION
AY LA PRESIDENT’S COLUMN AUSTIN KAPLAN KAPLAN LAW FIRM
Making Pro Bono a Priority
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et’s talk pro bono. Like many aspiring lawyers, I went to law school primarily to help people, and I learned that taking pro bono cases is one of the best ways to do that. When I opened my own firm in 2015, I had one goal: try not to go out of business. I had a tiny budget, lots of uncertainty, and no plans to take a pro bono case my first year. But, I ended up working a pro bono case that changed the course of my career, and I want to share that story. This story involves marriage equality. Like many of us, I have friends and loved ones who are directly affected by this issue, and it always struck me as extremely unfair to deny anyone the equal right to get married. That all changed in June of 2015, when the U.S. Supreme Court issued its Obergefell decision which held for the first time that same-gender couples have a constitutional right to marry.1 It was a watershed moment. But soon after, Texas Attorney General Ken Paxton issued a press release that gave some county clerks the impression their offices could refuse to issue same-gender marriage licenses. Meanwhile, in Granbury, native Texans Jim and Joe lived together on a 30-acre working
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ranch. They had been in a committed relationship for 27 years and wanted to get married at their home. So, they went to their local county clerk and requested their marriage license. From June 28 through July 2, 2015, Jim and Joe repeatedly attempted to obtain a marriage license from the Hood County Clerk’s office, but got the run-around. The Clerk, an elected official, ultimately refused their request, apparently following the advice of her personal lawyer. Pro bono work was not in my plan or budget, and I never dreamed I would handle a case like this, but I jumped at the opportunity.2 We sent a demand letter to the Clerk and then personally met with her and requested she follow the law, but she refused to issue the license.3 Our clients were forced to file suit.4 Early in the morning of the next business day, the Clerk’s office issued a handwritten marriage license to our clients. It was a great feeling to get one of the first holdout clerks to comply on an issue that was so important to so many people, including our clients. Our case attracted international news coverage, and even landed on the op-ed page of the New York Times. I could have never imagined, after opening my firm only six months earlier, that I would be involved with anything this rewarding. And, it was a pro bono case that did it.5 Handling that case remains my favorite experience as a lawyer. Take it from me, your next pro bono case might turn into some-
thing extraordinarily meaningful for you personally and professionally. It is a great way to do good, gain hands-on experience, and learn a ton. But, be sure to co-counsel or work through an organization so you have the support and guidance you need. Volunteer Legal Services, AYLA, the Austin Bar’s Free Legal Advice Clinic for Veterans, and its Self-Represented Litigant Project, along with several other partners, offer pro bono opportunities throughout the year. There is a great need for lawyers right here in Central Texas. So, take a case! Make sure your AYLA membership is current and, the next time you see a pro bono AUSTIN opportunity, do LAWYER AL AL not hesitate to get involved! Footnotes: 1. Obergefell v. Hodges, 576 U.S. (2015). 2. Thank you to Pat O’Connell and Judge Jan Soifer, who took the time to mentor me and bring me on as co-counsel on this case. 3. As a civil rights and employment lawyer, I support both LGBT rights and religious rights. I understand that
some folks strongly disagree with the Court’s reasoning and decision in Obergefell on religious and other grounds, including those elaborated in the dissents. Our case ultimately did not turn on those points, because it focused instead on the threshold issue of whether Obergefell constitutes controlling Supreme Court authority such that a clerk’s office must follow it. 4. See James Cato and Jody Stapleton v. Katie Lang, in her official capacity as Hood County Clerk, No. 4:15-cv491-A in the U.S. District Court, N.D. Texas, Ft. Worth Division. 5. We decided to take another step and seek fees for the hours we worked on the case. In August of 2015, we secured what we believe was the first post-Obergefell financial settlement against a Clerk who refused to issue same-sex marriage licenses. Our pro bono case unexpectedly became a low bono case! We donated a portion of what we recovered to the Equality Texas Foundation, whose mission is to secure full equality for LGBT Texans through education, community organizing, and collaboration.
AUSTIN YOUNG LAWYERS ASSOCIATION
AYLA Programs Awarded at Bar Leaders Conference
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ongratulations to the Austin Young Lawyers Association for its outstanding programming during the 20162017 bar year. At the 2017 State Bar of Texas Bar Leaders Conference, AYLA received the following awards: • Third Place, Large City Best Service to the Public – LawTube; • Third Place, Large City Diversity– Diversity Career Panel at The University of Texas School of Law; and • Third Place, Large City Best Service to the Bar – Speed Networking.
The Bar Leaders Conference is a two-day training program hosted by the State Bar of Texas, the Texas Young Lawyers Association, and the Texas Access to Justice Commission. It brings together leaders from the Texas Bar, TYLA, Access to Justice Initiatives, and local bar affiliates such as the Austin Bar and AYLA to coordinate, train, share best practices, and address common concerns for volunteer bar leaders. Thank you to AYLA President-Elect Jorge Padilla, Treasurer Sandy Bayne, Secretary David King, and Director Monica Stallings for representing AUSTIN LAWYER AL AL AYLA at the conference.
Sandy Bayne (right), with her husband, Justin, brought home some door prizes from the Bar Leaders Conference. Bayne is joined by AYLA leaders (from left) Jorge Padilla, David King, and Monica Stallings.
Austinite Honored with TYLA’s Liberty Bell Award
UPCOMING EVENTS
T
THURSDAY, SEPTEMBER 21 AYLA Judicial Reception 5:30 – 7:30 p.m. Four Seasons Hotel 98 San Jacinto Blvd.
he Texas Young Lawyers Association hosted its annual meeting on June 23, 2017 at the Hilton Anatole in Dallas. President Sam Houston handed the reigns over to incoming President Baili B. Rhodes. Board Chair Zeke Fortenberry handed the gavel over to incoming chair John W. Shaw. Houston and Fortenberry Greg Casar thanked a number of people for a very productive bar year and highlighted the successful projthe American system of justice ects that so many young lawby instilling better understandyers across the state worked on. ing and appreciation of the law. Houston also honored a number AYLA was pleased to nomof young lawyers for their inate Casar for the statewide exceptional service, including honor after he won their Liberty Austin City Council member, Bell award in May for his dediGregorio “Greg” Casar, winner cation to civil rights in Central of the Liberty Bell Award. Texas and his tireless efforts This award recognizes a to help immigrants and their AUSTIN LAWYER AL AL non-lawyer in Texas who has families. made the most selfless contribution to his or her community to strengthen the effectiveness of
THURSDAY, OCTOBER 19 AYLA Docket Call 5:30 – 7:00 p.m. Star Bar 600 W. 6th Street Sponsored by: Vertex MONDAY, OCTOBER 2 Bar & Grill Casting Call 6 p.m. Austin Bar Association 816 Congress Ave., Suite 700 Are you a lawyer who has secret (or not so secret) singing, dancing or acting talents? Do you sit at your desk and think of all of the set designs you might build if you just had the opportunity? If so, come join us as part of the cast or crew of this year’s AYLA Bar & Grill show. Need any additional information or have any questions? Email Amanda Arriaga at missmanda01@gmail.com.
SEPTEMBER 2017 | AUSTINLAWYER
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AUSTIN YOUNG LAWYERS ASSOCIATION
AYLA is Here to Help
I
s your practice suffering because of a personal crisis? Are you enduring tough times but don’t know where to turn? The Personal Crisis Assistance Program (PCAP) is here to help in your time of need. PCAP was created in 1996 to support Austin-area attorneys who face an immediate need for temporary financial or practice assistance because of a personal crisis. The objective of the program, funded by the Austin Young Lawyers Association Foundation, is to serve as a protection for lawyers and their clients when personal emergencies harm a lawyer’s practice. PCAP is available to attorneys who work or reside in Travis County and who are eligible for regular membership in AYLA. PCAP includes two levels of
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short-term assistance for lawyers in crisis: • Financial PCAP provides limited grant funds of up to $1,500 to assist an attorney who is unable to fulfill certain practice-related financial obligations due to a personal crisis. • Practice-Related Attorney volunteers agree to handle professional matters for the affected lawyer during the crisis. To apply confidentially for financial or practice assistance, please contact Debbie Kelly at 512.472.0279, x105 or at debbie@austinbar.org. Regardless of how overwhelming the problem may seem, help is available. You have worked hard to build your career—
PCAP was created in 1996 to support Austin-area attorneys who face an immediate need for temporary financial or practice assistance because of a personal crisis. PCAPAUSTIN is here to help you get LAWYER L AL back on yourAfeet.
2016-2017 Sustainability Society Members Volunteer Legal Services of Central Texas would like to thank this year's Sustainability Society members: Douglas Alexander Kris Algert Jim & Debbie Alsup Hon. James Arth Shelley Austin Hon. Carlos Barrera Mark Beaman Myrna Salinas Baumann Becky Beaver Paul Bessette David Blanke Heidi Bloch Marilyn Montano Brown Judith Bryant Susan Burton Kelly Capps Dr. Alejandra Carrasco William Christian Jeff Civins Elliot Clark Kari Commagere Michele Connors Jim Cowden Brandon Crisp Brendan Day Juliet Mitchell Dirba Ray Donley Mollie Duckworth Barbara Ellis John W. Fainter Syed Fareed Edward Fernandes Tecuan Flores
Philip Friday Efren Garcia Mark Garrett Geoffrey Gay Eric Groten Paula Heyman John Hicks Janet Himmel Hon. Rhonda Hurley Anthony Icenogle Hon. Wallace Jefferson Hon. Scott Jenkins Scott Kearns Patrick Keel Shannon Kidd Susan Kidwell Joseph Knight Puneet Kohli Bruce LaBoon Seth Lindner Sue Brooks Littlefield Keith Maples Thomas Mason Catherine Mauzy Janet McCullar Terry McElroy Mary Evelyn McNamara Hon. Amy Clark Meachum Kevin Meek Anne L. Morgan Mark Mouritsen Michael Mullen Jennifer Nall Karen Neeley
Jim Noffke Lea Noelke Beth Collum Ozmun Ajeet Pai David Parker Hon. Thomas Phillips Louis Pirkey Scott Powers Brian Prewitt Melissa Ramirez Chris Reeder Beverly Reeves Pierre Riou Martin Rochelle Mark Rozman Chris Ryan Margaret Sampson Pete Schenkkan Jody Scheske Gina Shishima Ernest Smith Peter Stokes Stephen Stout Paul Trahan Margaret Tucker Ben Vaughan, III Gavin Villareal Marc Vockell David Weaver Jane Webre John Williams Paulina Williams Evan Young Kevin Zarling
CLASSIFIED ADVERTISING HAS MOVED ONLINE! To better serve the timeliness of classified advertising, you can now purchase a classified advertisement for office space and items for sale at www.austinbar.org/classified-advertising.
Berry Crowley, Realtor® & Attorney Dave Floyd, Realtor®, Owner & Attorney Sara Foskitt, Broker, Owner & Attorney Vincent Harding, Realtor® & Attorney Ryan Holland, Realtor® & Attorney REALTORS
Shana Horton, Realtor® & Attorney Lisa Miriam, LEED AP, Realtor® & Attorney
ATTORNEYS
www.floydre.com (512) 917-2939
Testimonial from Jo Ann Merica: Sara has represented me in the sale of one property and the acquisition of another - in one of the hottest real estate markets Austin has ever had. She's a thorough, organized and hard-working salesperson and attorney. I can't recommend her highly enough!
Your Attorney Colleagues For All Your Real Estate Needs. Floyd Real Estate, L.L.C., Sara Foskitt, Designated Broker, Lic. 0598363
Offices in Austin, Round Rock and Dallas SEPTEMBER 2017 | AUSTINLAWYER
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Trivia Night Raises Funds for Austin Bar Foundation Reigning Team: Thank God it’s Air Conditioned!
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ongratulations to the winning Austin Lawyer Trivia team, “Thank God it’s Air Conditioned.” After six hard-fought rounds, they are the reigning champions from Trivia Night held on June 29, 2017. The team was made up of Lance Cawthon and Charlie Eldred. Hosted by Dave Floyd and Sara Foskitt, the event raised more than $1,000 for the Austin Bar Foundation. Thank you to our sponsors: Floyd Real Estate, Foskitt Law Office – Fee Attorney for Capstone Title, Tyler Ray at Prosperity Bank, Trenton Brough and The Brough Law Firm, and Pioneer Wealth Management Group.
OCT 5 AUSTIN LAWYER TRIVIA NIGHT LOCATION TBD 6:30 p.m. DETAILS: austinbar.org
The next Austin lawyer Trivia Night will be Thursday, October 5, 2017 at 6:30 p.m. Location is TBD. To sponsor or for more information,AUSTIN contactLAWYER Sara Foskitt AL AL at sara@foskittlaw.com. Winning team members Lance Cawthon (left) and Charlie Eldred (right) with Trivia Night host Dave Floyd (center).
Edward C. Fowler, CFA, ASA, MAFF (512) 476-8866 edward@financial-valuations.com www.financial-valuations.com
Thorough and Supportable Business Valuations Since 1996 36
AUSTINLAWYER | SEPTEMBER 2017
“Constable 5: your eFile service experts.” ~ Constable Carlos B. Lopez
MEDIATION & ADR SERVICES
MARK L. HAWKINS MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS
Request Constable 5 for eFile process service (more info at constable5.com) Convenient online Service Check, 24/7 All-inclusive fee includes Rush, SkipTrace, Research, and exclusive access to law enforcement databases Daily delivery to State of Texas offices Delivery throughout Travis County and to surrounding counties
The Courthouse Constable Constable Carlos B. Lopez 1003 Guadalupe Austin, TX 78701 www.Constable5.com Office 512.854.9100 Fax 512.854.4228
THE BEST LAWYERS IN AMERICA®
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Armbrust & Brown, PLLC 100 CONGRESS AVE., SUITE 1300 • AUSTIN, TEXAS 78701 512-435-2300 • FAX 512-435-2360 mhawkins@abaustin.com
SEPTEMBER 2017 | AUSTINLAWYER
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Three Austin Bar Leaders Recognized by NBTA National Board of Trial Advocacy Names Three Austin Lawyers as Board Members
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n July 22, 2017, the National Board of Trial Advocacy (NBTA) recognized Austin lawyers Jim Richardson, Tracy McCormack, and Chari Kelly at its national Board of Directors meeting in Boston. NBTA, the largest organization for national attorney board certification in the U.S., is accredited by the American Bar
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Association to offer board certification in civil trial advocacy, civil pretrial practice, criminal trial advocacy, family trial advocacy, and Social Security Disability. New practice areas of specialization are being proposed to the American Bar Association including complex litigation, health law, and trucking accidents. Richardson was named next
Richardson
McCormack
president-elect of the national organization. He will succeed NBTA national President-Elect
Kelly
Keith Clifford of Madison, Wisconsin. Richardson has served as president of NBTA’s Austin Chapter since 2015. He is a partner with Richardson + Burgess LLP and a past-chair of the Austin Bar Civil Litigation Section. NBTA named Austin lawyer Tracy McCormack as next president-elect, following Richardson’s term. Professor McCormack is a lecturer and director of advocacy at The University of Texas School of Law. In addition to currently serving on the Austin Bar Board of Directors, Professor McCormack has been a member of NBTA’s national board since 2016. She was also recently elected a member of the board of directors of NBTA’s Austin chapter Austin attorney Chari Kelly was elected to NBTA’s national board of directors. Kelly is an assistant district attorney for Travis County and extended faculty member in the Advocacy Department of The University of Texas School of Law. She serves on the Austin Bar Board of Directors and is a past president of Austin Young Lawyers Association. On October 27, 2017, NBTA’s Austin Chapter is slated to present a daylong CLE Program hosted by Jackson Walker. Next year, NBTA will present its National Allstar/Masters CLE Conference in New Orleans. For additional information, please contactLAWYER Jim Richardson AUSTIN AL AL at 512.499.8879.
Foskitt Law Office, P.L.L.C. Fee Attorney for Capstone Title
Real Estate Closings, Escrow, Title Insurance - Residential and Commercial Refinancing? You can choose us as title, and we can close the loan at your office. Selling? You can choose us as title, and we can close the sale at your home or office.
Sara Foskitt, Escrow Officer & Attorney Dave Floyd, Business Development & Attorney Katie Fry, Escrow Assistant
www.foskittlaw.com sara@foskittlaw.com (512) 917-2939
THE LITIGATION, CO-COUNSEL TRIAL TEAM FOR SOLO AND SMALL FIRM PRACTITIONERS
Negotiate With Confidence - Our Trial Team Has Your Back Meghan Alexander | David M. Gottfried | Michael Jurgens | Tara Gillespie
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SEPTEMBER 2017 | AUSTINLAWYER
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TAKE ADVANTAGE OF A MORTGAGE DISTINCTLY MADE FOR ATTORNEYS Introducing our Professional Mortgage Loan Program
Our lenders have extensive experience working with legal professionals like you. We’ve created a mortgage program that provides the ease and flexibility you want when purchasing your new home.
ROGER BOTT Senior Vice President Private Banking Specialist 512.465.6515 rbott@broadway.bank NMLS #607451
■ Down payment as low as 5% for loan amounts up to $1,000,000 ■ No private mortgage insurance ■ Flexible qualifying guidelines ■ Loan amounts up to $1,500,000
OUR FINANCIAL KNOWLEDGE IS YOUR FINANCIAL EDGE. FindYourHomeLoan.com 866.890.2260
39 Financial Centers | Member FDIC Membership qualifications for Private Banking at Broadway Bank apply. All loans subject to credit approval, verification and collateral evaluation. Rates, terms and conditions are subject to change without notice. Lending area and other restrictions apply.
STEPHEN JEFFREY Senior Vice President Private Banking Specialist 512.465.6515 sjeffrey@broadway.bank NMLS #612260