Austin Lawyer, September 2019 by Austin Bar Association

austinbar.org SEPTEMBER 2019 | VOLUME 28, NUMBER 7

Austin Bar Association Offers Special Membership Rates J oin the Austin Bar for 2020 and Get Full Member Benefits for the Rest of 2019 for Free

f you aren’t already a member of the Austin Bar Association, now is the perfect time to join to take advantage of this special membership rate. MEMBER BENEFITS Members receive a host of member benefits which provide a solid return on their investment, including a monthly subscription to Austin Lawyer; many free and discounted CLE opportunities, including more than 60 hours of free CLE online; access to 25 substantive law sections; member discounts and services; and much more. COMMITTEES The Austin Bar Association’s 15 active committees give members a chance to get involved with both the legal and local communities. Whether your passion is teaching students about the law, helping plan CLE courses, improving lawyer well-being, mentoring young lawyers, or offering free legal advice to veterans or cancer patients, the Austin Bar has the perfect committee for you.

AY A N D

RG •

J OI

D TO

S • VI

Visit austinbar.org for more information about member benefits and committees, and to join online. For questions or assistance, contact Membership DirectorAUSTIN Carol Tobias, at LAWYER AL AL carol@austinbar.org.

TIN B

CONTENTS

AUSTINLAWYER SEPTEMBER 2019 | VOLUME 28, NUMBER 7 AL A L INSIDE FEATURED ARTICLES 1

Austin Bar Association Offers Special Membership Rates

President’s Column

Join Austin Bar’s 100 Club for 2020

Briefs

Bar Year by the Numbers

Be Well

Update on Austin Bar’s Hilgers House

Opening Statement

LGBT Law Section to Host Kick-Off Reception

Third Court of Appeals Civil Update

13 Travis County District Clerk Update

Third Court of Appeals Criminal Update

19 State Bar of Texas Honors 50-Year Lawyers

Federal Criminal Court News

20 The EOIR System Is Broken

Entre Nous

28 Austin Bar Association Wins State Bar Awards

AYLA

30 Austin Lawyers Win Big at U.S. Supreme Court

Practice Pointers

ONLINE

ONLINE austinbar.org EMAIL nancy@austinbar.org

14 TCWLA Kicks Off Seventh Year of Mentoring Program

CONNECTIONS

DEPARTMENTS

MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar

austinbar.org

NEWS & ANNOUNCEMENTS

EVENTS & MORE

The Honorable Tim Sulak Elected Travis County Local Administrative Judge

OCT 3 Lawyer Well-Being Committee

Sulak’s New Role Begins on Sept. 1, 2019

Austin Bar Pro Bono Committee Steps In to Finalize Adoption for Local Family Dying Father’s Wish Fulfilled for His Three Children

CAPPS LAW FIRM, PLLC

STREAM @AustinBarAssociation FOLLOW instagram.com/theaustinbar

Bar Year Kick-Off Ethics CLE & Mixer

4 p.m. Ethics CLE: 10 Tips for Lawyer Well-Being 5 - 7 p.m. Networking Mixer Hilgers House, 712 W 16th St. RSVP at austinbar.org

TEXT austinbar to 313131 for up-to-date news + info Message & data rates may apply.

Litigation Support & Appraisals Expert Witness Testimony

Jewelry · Watches · Art • • • • • • •

DIVORCE BANKRUPTCY DECEPTIVE TRADE CONSUMER FRAUD INSURANCE FRAUD TRADEMARK PATENT

Heirloom Estate Planning Liquidation of Art & Jewelry

SEPTEMBER 2019 | AUSTINLAWYER

Many legal malpractice insurers have come and gone in Texas over the last four decades. TLIE has been here since 1979. 40 YEARS SUPPORTING TEXAS LAWYERS

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

AUSTIN YOUNG LAWYERS ASSOCIATION Sandy Bayne �� President David King �� President-Elect Rachael Jones �� Treasurer Blair Leake �� Secretary Jorge Padilla �� Immediate Past-President

TLIE.org / info@tlie.org / (512) 480-9074

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

Responsive. Experienced. Professional. Your Austin source for reliable U.S. and Global Immigration expertise. EMPLOYERS

INVESTORS & STARTUPS

INDIVIDUALS & FAMILIES

Foster delivers a full suite of immigration enterprise solutions customized to meet the needs of your organization.

We are experienced in resolving complex immigration problems while taking into account the realities of investors, start-ups and entrepreneurs.

At Foster, we’re proud of our long history of service and advocacy on behalf of individuals and families.

Request a consultation: +1 512.852.4142

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

www.fosterglobal.com

AUSTINLAWYER | SEPTEMBER 2019

Serving Austin since 1999. 912 S Capital of Texas Hwy, Suite 450 Austin, TX 78746

PUBLISHED BY Monarch Media & Consulting, Inc. Ph: 512.680.3989 | Fax: 866.328.7199 monarchmediainc.com Advertising inquiries call 512.293.9277.

Join Austin Bar’s 100 Club for 2020

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 each week in the Austin Bar’s e-newsletter, Bar Code, which is emailed weekly to about 4,000 members. Interested in becoming a 100 Club member? Contact Carol Tobias, membership director, at carol@austinbar.org. Special thanks to the following Austin law firms for supporting the programs and practices of the Austin Bar Association with 100 percent participation in 2019.

Alexander Dubose Jefferson & Townsend Allensworth & Porter Almanza, Blackburn, Dickie & Mitchell Armbrust & Brown Andrews Myers Barnes Lipscomb Stewart & Ott Barnett & Garcia Blazier, Christensen, Browder & Virr Boulette Golden & Marin Bracewell Branscomb Brim, Robinett Cantu & Brim Brink Bennett Flaherty Burns Anderson Jury & Brenner Burnett Turner Cain & Skarnulis Cantilo & Bennett Chamberlain  McHaney City Of Austin Law Department Coffin Renner Coldwell | Bowes Cook Brooks Johnson Dalrymple, Shellhorse, Ellis & Diamond Davis & Wright Deats, Durst & Owen DeShazo & Nesbitt DuBois, Bryant & Campbell Eichelbaum Wardell Hansen Powell & Mehl Enoch Kever Erskine & Blackburn Friday Milner Lambert Turner George Brothers Kincaid & Horton Giordani, Swanger, Ripp & Jetel Gjerset & Lorenz GoransonBain Ausley

Shearman & Sterling Graves, Dougherty, Hearon Slack Davis Sanger & Moody Greenberg Traurig SledgeLaw Group Hanna & Plaut Smith Law Group Hawkins Parnell Thackston Streusand, Landon & Ozburn & Young Supreme Court of Texas Herring & Panzer Texas Comptroller of Public Hopper Mikeska Accounts Howry Breen & Herman Texas Department of Motor Hunton Andrews Kurth Vehicles Jackson Lewis Texas Rio Grande Legal Aid Jackson, Sjoberg & Townsend Texas Workforce Commission Kelly Hart The Blum Firm Kiester, Ciccone & Bollier The Chapman Firm Kirker Davis The Hay Legal Group Kuperman, Orr & Albers Third Court of Appeals Littler Mendelson Thompson & Knight Lloyd Gosselink Thompson Salinas & Londergan Locke Lord Travis County Attorney’s Office Martens, Todd, Leonard Travis County Civil Court & Ahlrich Travis County Court at Law McDonald, Mackay & Weitz Judges McKool Smith Travis County Criminal Courts McLean & Howard Travis County District Attorney’s Metcalfe Wolff Stuart & Williams Office Munsch Hardt Kopf & Harr Travis County District Court Noelke Maples St.Leger Bryant Judges Norton Rose Travis County Probate Court Office of the Attorney General Weisbart Springer Hayes Orrick Whitehurst, Harkness, Brees, Osborne, Helman, Knebel Cheng, Alsaffar & Higginbotham & Scott Winstead Pillsbury Winthrop Shaw Pittman Wright & Greenhill Potts Blacklock SenterfittAUSTINLAWYER Wynne & Wynne Reed, Claymon, Meeker AL AL & Hargett Reeves & Brightwell Richards Rodriguez & Skeith Richie & Gueringer Scott Douglass & McConnico Shaw Cowart

Chris Andre New Vehicle Leasing / Pre-Owned Sales Domestics / Imports / Exotics

SEPTEMBER 2019 | AUSTINLAWYER

PRESIDENT’S COLUMN D. TODD SMITH, SMITH LAW GROUP

Connecting in Real Life

awyer well-being is starting to receive considerable attention among state and national bar groups. Rightly so. In my view, though, lawyer well-being starts locally, with personal connections and trust relationships that can only develop by spending time getting to know someone. When I opened my firm more than a decade ago, I saw the potential for technology to level the playing field between solo/ small-firm practitioners and larger firms possessing substantially greater resources. I started with a laptop and a scanner and went from there. Technology has evolved at a rapid pace since I hung my shingle. We can now run our practices from small but powerful devices over widely-available highspeed internet connections from wherever we happen to be. Brickand-mortar offices are becoming optional luxuries. Water-cooler conversations, lunchtime visits, and happy hours with colleagues are becoming less frequent. As an unintended consequence of technological innovation, meaningful workplace connections are harder to come by. This trend has coincided with the rise of social media and a general sense of distraction in our society. We’re inundated with emails and text messages, and our smartphones buzz with

AUSTINLAWYER | SEPTEMBER 2019

notifications from Facebook, Twitter, Instagram, LinkedIn, and the like. These platforms allow you to follow or “friend” many people, but the online interactions they encourage differ from those in the real world. The sense of human contact and connection just isn’t the same. Technology is neither inherently good nor inherently bad, and it can be a wonderful tool when used correctly. But technology and social media have created a state of widespread hyper-connectedness affecting us in a way that can’t be ignored: It doesn’t much matter where we are or who we’re with; we can hardly go an hour, or thirty minutes, or five minutes without drifting from the real world to the online world through our devices. What drives this behavior? Fear of missing out? The dopamine hit that getting a “like” brings? Or are we just bored because constant stimulation has whittled away our attention spans? The inherent stresses of being a lawyer are hard enough without these distractions. The Texas Lawyers’ Assistance Program reports that one-third of lawyers 30 years old and younger have a drinking problem. Nearly 30 percent of all lawyers struggle with depression. And 11 percent of lawyers have considered suicide at some point in their careers. Constant online connection and feedback inundates us with information that can only make the situation worse. We are reminded of tasks not performed and needs not yet met. We are distracted from making progress on important work. Our self-worth takes a hit when we compare our lives to the ones our peers seem to lead based on how they present themselves online. Time that could be spent on self-care and sleep is occupied by mindless

The Austin Bar Association is a wonderful place to connect with others and find a place to belong. If you’re looking for a place to get plugged in, the Austin Bar is it. Won’t you join us in real life? scrolling. Though touted as a way by local, state, and national bars to connect people, online-only reas a leader in programming lationships tend to be superficial benefitting our members and and can actually prevent healthy the public. We recently won the social interaction. State Bar’s Award of Merit for As we begin a new bar year, best overall local bar association my challenge to you is this: The programming and projects, and next time you attend an Austin our Pro Bono and Community Bar function, CLE program, or Engagement committees were other meeting, don’t take your similarly recognized. smartphone with you. The world Our forthcoming transition will not end if you don’t “check from downtown offices to Hilgers in” to the event. With the time House in the Judges Hill neighyou may have spent adding the borhood will create even more event to your SnapChat story connection opportunities and or seeing how many “likes” foster an even greater sense of your latest Instagram post has community. The new Austin Bar attracted, talk to the person next Lawyer Well-Being Committee to you. Converse with them. Get will take these opportunities to to know them. This kind of “real the next level. You can learn more world” connection is far more about the Lawyer Well- Being significant than anything you can Committee by reading the new reachieve online and it could make curring column “Be Well” found on page 12 of this issue. a difference in someone’s life. If you’re looking for a place to The Austin Bar Association get plugged in, the Austin Bar is a wonderful place to connect it. Won’t you join us in real with others and find a place toAUSTINisLAWYER Alife? L AL belong. We are highly respected

SEPTEMBER 2019 | AUSTINLAWYER

Update on Austin Bar’s Hilgers House When Are We Moving? “

hen are you moving?” This is the number one question being asked of Austin Bar staff lately. When indeed? The summer was spent going through office closets, throwing some things away, moving others to a storage unit, emptying out file cabinets, and preparing to pack up offices. Meanwhile, the house has seen a steady stream of carpenters, plumbers, electricians, handymen, carpet layers, floor refinishers, landscapers, and a whole host of other workers, filing in and out daily. Furniture was moved in, and meetings were held with architects and contractors. Plans are being drawn up to add an ADA-compliant ramp and to convert the Carriage House into a functional and comfortable conference room. Simultaneously, permit

CLOCKWISE: The Terry Tottenham Board Room. The Howry Breen Veranda. The Naranjo Ewbank Lounge.

requests are going through the proper channels at City Hall. As soon as the Certificate of Occupancy is granted by the City of Austin, we will officially move into our new home at 712 W. 16th Street. As of this printing, we are planning to move at the end of September. If everything goes as planned, we will be in our

2019 OUR HOME

ON JUDGES HILL

AUSTINLAWYER | SEPTEMBER 2019

space to meet, please contact the Austin Bar staff for assistance in making those arrangements. Once the Carriage House has been converted into a conference room—we hope by the end of the year—even more meetings can be held at Hilgers House. Please check the Austin Bar website at austinbar.org to confirm the location of meetings orLAWYER events during AUSTIN this time of transition. AL AL

DONATE TODAY FOR THE LLOYD LOCHRIDGE CONFERENCE ROOM

Most of the named spacCAPITAL CAMPAIGN es in Hilgers House have been claimed —except for the conference room in the Carriage House. Thanks to Jo Ann Merica, Dirk Jordan, and Karen Burgess, a campaign is underway to raise enough money to name this meeting space in honor of Lloyd Lochridge. In Merica’s words, “Don’t you think it feels right to honor Mr. Lochridge by ensuring that generations of future attorneys meet in the Lochridge Conference Room? Many of us have benefited from his guidance, wisdom, and example, and we can think of no better way to thank him than by enshrining his values in the Austin Bar’s new home. If you’ve been

new home by early October. Throughout the month of September, all meetings and events currently scheduled to be held in our office will be held at 816 Congress Ave., Suite 700. Beginning in October, smaller meetings will be held at Hilgers House, while larger meetings will be held offsite. We are coordinating with the Austin Club to host many of our larger section meetings. If your section or committee needs a

waiting to support the “Our Home on Judges Hill” campaign until something truly spoke to you—we hope that this is it. This is an opportunity for all of us to sign our own names— permanently—to this legacy for our colleague, mentor, and friend. I hope you’ll join us in ensuring that Mr. Lochridge’s name is remembered anytime attorneys gather to learn from each other.” To make a gift, go to www.ourhomeonjudgeshill.com and enter “LOCHRIDGE” to designate your gift in honor of Mr. Lochridge. You can also write a check to the Austin Bar Foundation, with “LOCHRIDGE” in the memo line, and mail it to the Austin Bar at 816 Congress Ave., Suite 700, Austin, TX 78701. All gifts to the Lochridge Conference Room campaign can be payable over five years and may be claimed as a charitable tax deduction.

LGBT Law Section to Host Kick-Off Reception

Tâ&#x20AC;&#x160;

he LGBT Law Section of the Austin Bar Association will host a membership kick-off and welcome reception on the veranda of the Austin Barâ&#x20AC;&#x2122;s new home, Hilgers House, located at 712 W. 16th St., on Thursday Oct. 17, 2019 from 5:30 to 7:30 p.m. Champagne and appetizers will be served as several speakers talk about the past work of the former Austin LGBT Bar Association and the projects and programs the new Austin Bar LGBT Law Section hopes to implement in the coming year. Recently, the former Austin LGBT Bar Association disbanded and has been reformed as the LGBT Law Section of the Austin Bar. With the staffing and organizational backing of the Austin Bar, the new LGBT Law Section hopes to provide better service to its membership and even more programming and resources to the LGBT legal community and to lawyers representing LGBT clients.

Former members of the Austin LGBT Bar Association who are current members of the Austin Bar will automatically become members of the new LGBT Law Section until the next membership renewal period in January 2020. At that time, all Austin Bar members will need to sign up to join or renew membership in the section, just as with all other sections of the Austin Bar. Section dues are $25 and include annual membership and discounts on section meetings, CLE, and social events. Membership also ensures communication regarding upcoming events, news, and other important information relating to the Austin Bar and the LGBT Law Section. Attorneys who were not previously members of the Austin LGBT Bar, or who are not already members of the Austin Bar, are welcome to join the Austin Bar and the LGBT Law Section at austinbar.org. Or, simply come to the kick-off reception on Oct.17 to sign up and learn about volunteer opportunities. Those who join

abreast of the rapidly changing the Austin Bar now for 2020 will common-law and statutory issues receive full member benefits and involving LGBT representation. enjoy all of the CLE and activities The LGBT Law Section will conoffered by the LGBT Law Section tinue to provide forums to discuss for the rest of 2019 for free. these issues as well as to organize Membership in the Austin Bar social and community engagement is a prerequisite to joining the events to promote its mission of LGBT Law Section, but financial raising the visibility of LGBT atassistance is available for those torneys in the Austin community. who need it. Contact DeLaine The LGBT Section will also conWard at delaine@austinbar.org if tinue to work with law students to financial assistance is desired. provide both mentoring resources The Austin LGBT legal comand scholarship opportunities. munity and its allies have been Please put the Oct. 17 recepat the forefront of providing CLE tion on your calendar and plan programs on the myriad of legal to attend. The next LGBT Law issues unique to attorneys who Section CLE, on family law, will represent LGBT clients. In matters be held later this fall. Be sure to of adoption, employment, probate, join the section to stay updated immigration, anti-discrimination, for more details as they become and transgender identity rights, AUSTIN LAWYER available. historical discriminatory laws have AL AL required Austin lawyers to stay

SEPTEMBER 2019 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Brandon Bolin Cameron Byrd Eric Dowdy Larry Hargrove Manuel Hernandez Sara Hunt Tiffany Leal William Matthews Matt Morrison Esther Pena Anne Peters Patrick Shelton Adam Simmons Gabrielle Smith Emily Yang

ABOVE: Anderson, Ausley, Benesh, Bueno, Ducloux, and McConnico LEFT: Ong, Schramek

Serving Texas Companies and Law Firms SINCE 1973

We’ve grown to be the third largest independent CPA firm in Texas because of our commitment to our people, our community, and our clients. In fact, we earned a Net Promoter Score four times the industry average, and many of our clients have been with us for decades. With sophisticated services found at larger firms, delivered with a hands-on approach, Briggs & Veselka is the ideal firm for growing middle-market companies in Austin and across the state.

Offices in: Houston The Woodlands n El Campo n Austin n San Antonio n n

Audit | Tax | Forensic Accounting | Valuation | Digital Forensics 10

AUSTINLAWYER | SEPTEMBER 2019

To learn how our Legacy of Loyalty can benefit your growing company, contact one of our shareholders: Forensic Accounting Services

Forensic Accounting & Tax Services

Audit Services

Edward Fowler

Bill Love

Larry Dodson

edward.fowler@bvccpa.com 512-476-8866

blove@bvccpa.com 512-346-0908

larry.dodson@bvccpa.com 512-480-8182

www.bvccpa.com

BE WELL

The Lawyers Are Not Okay BY DANIELLE AHLRICH, CO-CHAIR OF AUSTIN BAR’S LAWYER WELL-BEING COMMITTEE

ou don’t have to look far to discover disconcerting statistics about the lack of well-being within the legal profession. A 2016 American Bar Association study “found that between 21 and 36 percent [of practicing lawyers] qualify as problem drinkers, and that approximately 28 percent, 19 percent, and 23 percent are struggling with some level of depression, anxiety, and stress, respectively. The parade of difficulties also includes suicide, social alienation, work addiction, sleep deprivation, job dissatisfaction, a ‘diversity crisis,’ complaints of work-life conflict, incivility, a narrowing of

AUSTIN LAWYER WELL-BEING COMMITTEE PLANNING GROUP

Danielle Ahlrich, Committee Co-Chair Heidi Bloch Sam Colletti David Courreges Karen Crawford Former Justice Scott Field Erica Grigg Kendyl Hanks Brad Houston Former Chief Justice Woodie Jones Jorge Padilla Diana Reinhart Chris Ritter Nikki Maples D. Todd Smith, Austin Bar President Jason Snell Amanda Taylor, Committee Co-Chair Drew Williams Kennon Wooten, Austin Bar President-Elect 12

AUSTINLAWYER | SEPTEMBER 2019

values so that profit predominates, and negative public perception.”1 Without proper self-care, lawyering can be downright dangerous. That’s why Austin Bar Association President, D. Todd Smith, has made it his mission to enhance attorney well-being within our local bar through the Austin Bar’s Lawyer Well-Being Committee—a new coalition born from the Austin Bar’s prior health and wellness initiative. My co-chair, Amanda Taylor, and I are thrilled to work on this important initiative with an expanded reach. Before you decide that this well-being initiative is not for you, let’s talk about the meaning of “well-being.” The committee’s goal is to educate, support, and connect our legal community so that all of us can achieve more balanced, mindful, and joyful lives and practices. In other words, we’re hoping to support a wide range of attorneys dealing with—or seeking to prevent—a host of issues, from the early stages of stress, burnout, or isolation, to more serious issues like anxiety, depression, and substance abuse. We are pleased to announce that we have formed a fantastic strategic planning group to kick-start programming for the Austin Bar’s Lawyer Well-Being Committee. We’d love to have you contribute to this important work, and we’ll definitely need your help! With a robust group, we can implement more frequent and diverse programming to serve a wider section of the Austin Bar with limited

Our goal is to teach lawyers to care for themselves—and to make self-care a priority—so that attorneys can continue to care for others through use of their law license, or otherwise. time commitments by individual committee members. We’re currently considering ideas such as lunch-and-learns with well-being experts; a well-being book club (Brené Brown fangirl here!); partner- and family-centered events where lawyers hang out and see each other as humans rather than as colleagues or opponents; and physical wellness meet-ups, like hikes in the greenbelt or climbing at the Austin Bouldering Project. We also plan to partner with the Texas Lawyers’ Assistance Program to provide support and resources for attorneys in need. Our goal is to teach lawyers to care for themselves—and to make selfcare a priority—so that attorneys can continue to care for others through use of their law license,

or otherwise. We hope that you will join our committee and/or participate in our programming this year. If you would like to join the committee, or simply submit ideas for the committee’s consideration, you may contact me at dahlrich@textaxlaw.com or Amanda Taylor at Amanda. Taylor@butlersnow.com, or sign up for the committee at austinbar.org/for-attorneys/ AUSTIN LAWYER committees. AL AL Footnote 1. The Report of the National Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (2017).

Travis County District Clerk Update Changes Impacting the Legal Community BY VELVA L. PRICE, T R AVIS COUNTY DISTRICT CLERK

he Travis County District Clerk’s Office has implemented changes that will benefit both practitioners and members of the public. Key changes include: • Improved the jury duty experience for Travis County citizens by giving jurors the ability to ride mass transit free of charge; • Implemented e-filing for criminal cases; • Created clerk positions that specialize in appeals, transfers, severances, and consolidations; • Transferred microfilm documents to the electronic files; • Added the ability to obtain docket information for both civil and criminal cases; • Used technology to improve customer service by making

it easier for people to obtain information and make payments for court costs and fines outside of business hours; • Expanded passport services by posting wait times online, expanding the public area, and showing movies and children’s programming; and • Accommodated Travis County growth by placing staff at the Travis County Law Library and Volunteer Legal Services Clinic. FUTURE PLANS In the fall of 2020, the Travis County District and County Clerks will implement a new case-management system called Odyssey. This system will apply to both criminal and civil cases. Odyssey will increase the speed opening of files and inputting information. The case portal will combine cases from all courts

In 2020, the Travis County District and County Clerks will implement a new case management system. (Justice of the Peace, County, and District courts). Users will be able to access a single portal to obtain information about any case, whether it is a Justice of the Peace or District Court case. This system change will be communicated to the legal community and the public via email, the Travis County and District Clerk’s websites, and local bar association outlets. By 2021, most of the counties in the Central Texas I-35 Corridor (Bell, Bexar, Hays, Travis, and Williamson counties) will be using the same system. Consequently, users will input documents in generally the same way. After Odyssey has been installed, the District Clerk will implement online access to general litigation/government files for the public and encourage

criminal cases to go paperless by working with the courts, State, and defense attorneys. Thanks to everyone for your support of the District Clerk’s office. I look forward to continuing to work with legal practitioners and the community and respondingLAWYER to your comments and AUSTIN suggestions. AL AL CONTACT INFORMATION WEBSITE: www.traviscountytx.gov/ district-clerk

E-MAIL ADDRESS: districtclerkhelp@ traviscountytx.gov PHONE NUMBER: 512.854.9457

MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS

Appeals and Trial Court Support

2016-PRESENT

www.LaurieRatliffLaw.com 512-422-3946 laurie@laurieratlifflaw.com SEPTEMBER 2019 | AUSTINLAWYER

TCWLA Kicks Off Seventh Year of Mentoring Program

ince 2013, the Travis County Women Lawyers’ Association (TCWLA) Mentoring Program has been matching seasoned and new attorneys to allow the participants to learn from each other, build friendships, and create support systems. TCWLA members can join the Mentoring Program as a mentor, mentee, or member of the mentoring committee. These roles offer rewarding experiences that further TCWLA’s overall mission to foster communication among women lawyers. If you are interested in participating, go to TCWLA.org for requirements and information, or contact co-chairs Jane Atwood at jane.atwood62@ gmail.com, or Sherine Thomas at sherine.thomas@ traviscountytx.gov. Members of the TCWLA 2018-19 Mentoring Program at their End of Year Event at Z-Tejas.

The TCWLA Mentoring Program offers rewarding experiences to foster communication among women lawyers.

My Role as a TCWLA Mentor

My Role as a TCWLA Mentee

BY CYNTHIA W. VEIDT, ASSISTANT COUNTY ATTORNEY & FORMER EQUITY PARTNER, LIPPINCOTT PHELAN VEIDT

BY NEHA PAYMASTER, ASSOCIATE ATTORNEY, ECCLES & MCINTOSH

AS A YOUNG LAWYER—honestly, even before my decision to attend law school—I had the honor of working with a number of wonderful role models and mentors. So when one of those mentors asked me to “give back” by joining TCWLA as a mentor for others, how could I say no? Mentoring has provided me with an enriching experience over the past few years. I’ve had

AUSTINLAWYER | SEPTEMBER 2019

the opportunity to meet lawyers at the beginning of their careers and had the pleasure of watching them develop into amazing professionals who also “give back” through work, volunteering, networking, and mentoring others. It feels like that old commercial—I’ve mentored two women, and they’ve mentored two women, and so on, and so on, creating an exponential web of support and friendship. To be honest, we haven’t really stopped at just two apiece. Knowing that this support network exists—that the support flows in both directions—has helped me throughout my career, in good times and harder ones. Mentoring allows you the opportunity to teach, but it also provides the opportunity to learn. It is one of the most rewarding and fulfilling experiences I’ve discovered during my practice of law.

DURING MY FIRST YEAR as a licensed attorney, I joined TCWLA with the hope of meeting more seasoned attorneys who could guide a lawyer at the start of her career. Along with meeting lawyers who were willing to take the time to mentor a new lawyer, I began to learn what it meant to be a positive part of the legal community. Because of the welcoming environment of TCWLA,

I applied to be a mentee in the Mentoring Program. As a mentee, I was provided the opportunity to build a relationship with a seasoned lawyer over the course of a year. Through the program, I gained a community of lawyers willing to share their experiences and provide support as we navigated these new roads. The mentoring program fostered a collaborative environment in which we were encouraged to reach out not only to our mentor, but any other mentor or mentee. The program encouraged me to step out of my comfort zone and become an active member of our legal community. I still meet with, lean on, and learn from my mentor. She continues to be an invaluable resource to me as I build my legal career. I am excited for the day when I can give back to this organization and community by serving as a mentor.

The Go-To Digital Forensics Firm in Texas CELEBRATING

10 YEARS IN BUSINESS IIIIIIII RRRRRRR PPPPPPPP AAAAAAA TTTTTTT

Thank You to the Texas Legal Community!

September 18-20

DoubleTree Austin

My Role as a TCWLA Mentoring Committee Member BY ARIANNA L. SMITH, ASSOCIATE ATTORNEY, FRITZ, BYRNE, HEAD & GILSTRAP

I OWE A LOT OF MY SUCCESS as a young attorney to TCWLA’s Mentoring Program. When I moved to Austin to begin my legal career, I did not know many attorneys whom I could turn to for guidance. Once I joined TCWLA’s Mentoring Program as a mentee, my network of attorneys immediately grew. I had the

incredible opportunity to learn from an experienced attorney who was dedicated to helping me achieve my professional goals. Eventually, I wanted to help behind the scenes, so I volunteered to be on the TCWLA Mentoring Committee. While on the committee, I coordinated events that brought new and experienced attorneys together. I was an integral part in creating lasting friendships and support systems. As a member of the committee, I have also had the opportunity to moderate a CLE panel and learn about areas outside of my legal practice. The opportunities and experiences not only with the Mentoring Program, but with TCWLA generally, are endless AUSTIN LAWYER and rewarding. AL AL

September 18-20

DoubleTree Austin

Includes CLE, socials, keynote luncheon September + PD18-20 Annual MeetingDoubleTree on Friday Austin

Online Registration opens June 1 Includes CLE, socials, keynote luncheon + PD Annual Meeting on Friday www.txpd.org/TAPS

Online Registration opens June 1 www.txpd.org/TAPS SEPTEMBER 2019 | AUSTINLAWYER

OPENING STATEMENT

(cleaned up) The Daring New Explanatory Parenthetical BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

uppose you’re writing a piece of legal analysis and you need to quote a case that’s quoting another case. And suppose you omit some words and alter it a bit. Under Bluebook rules, you’d cite the case you’re quoting as well as the underlying source, and you’d show every alteration and omission. Those are the rules. So you might end up with something like this: The Court has previously observed that “[t]he failure to affirmatively establish the fact sought does not ‘prevent the cross-examination from having . . . probative value in regard to the witness’s credibility.’” Henry v. State, 343 S.W.3d 282, 288 (Tex. Crim. App. 2018) (quoting Cawdery v. State, 583 S.W.2d 705, 710 (Tex. Crim. App. 1979)). But what if you could delete the brackets, the ellipses, and the quotations within quotations? What if you could omit the underlying source and the parenthetical it’s embedded in? Wouldn’t that be okay, as long as you told the reader you “cleaned up” what would otherwise be a messy quotation? If you did, it might look like this: The Court has previously observed that “the failure to affirmatively establish the fact sought does not prevent the cross-examination from having probative value in regard to the witness’s credibility.” Henry v. State, 343 S.W.3d 282, 288 (Tex. Crim. App. 2018) (cleaned up). That cleaner, neater version was the goal of attorney Jack Metzler when he invented the “cleaned up” explanatory parenthetical in 2017. Metzler has also written a

What if you could omit the underlying source and the parenthetical it’s embedded in? Wouldn’t that be okay, as long as you told the reader you “cleaned up” what would otherwise be a messy quotation? law-review article about (cleaned up). The idea was to make quotations easier to read and to reduce words and bibliographic clutter. So the original: Above all, “[c]ourts presume that the Legislature ‘ “understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds.” ’ ” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968) (quoting Texas Nat’l Guard Armory Bd. v. McCraw, 126 S.W.2d 627, 634 (Tex. 1939))). would look like this: Above all, “courts presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems manifest by experience, and that its

discriminations are based on adequate grounds.” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (cleaned up). Metzler’s idea was a hit. Lawyers and judges have started using (cleaned up). It has appeared in dozens of appellate briefs and judicial opinions in Texas. Metzler’s rules for (cleaned up) are too lengthy to quote here; you can find them on my blog, LEGIBLE. But his policies are useful: Using (cleaned up) means that in quoting, the author • has removed extraneous, non-substantive material such as brackets, quotation marks, ellipses, footnote numbers, and internal citations; • has changed capitalization without indicating the changes; and • has made changes that enhance readability while otherwise faithfully reproducing the quoted text. Bottom line: using (cleaned

up) makes quoting and citing easier and aids reading, too. But beware. When you use (cleaned up), your credibility is on the line. You’re saying, “I haven’t altered this quotation unethically, and I haven’t done anything dishonest or underhanded.” If you use (cleaned up) to change the quotation in ways that misrepresent the original text, your credibility is gone. Of course, that’s true of anything you cite or quote: If you’ve exaggerated, fudged, or lied, someone—judge, staff attorney, clerk, opposing counsel—will find you out. So consider (cleaned up) and join me in hoping the next edition AUSTIN LAWYER L AL of the Bluebook takesAnote. Footnotes: 1. Jack Metzler, Use (cleaned up) to Make Your Legal Writing Easier to Read, Before the Bar (Oct. 3, 2017) https:// abaforlawstudents.com/2017/10/03/ use-cleaned-up-make-legal-writingeasier-to-read/. 2. Jack Metzler, Cleaning Up Quotations, 18 Journal of Appellate Practice and Process 143 (2017). 3. https://sites.utexas.edu/legalwriting. 4. Metzler, supra note 2, at 154.

SEPTEMBER 2019 | AUSTINLAWYER

IIIIIIIIIII

TD K

DDDDD MMCCCC

F 18

AUSTINLAWYER | SEPTEMBER 2019

TTT MMCCCC

OOO

GGG LLL SSSSSSS

KKKKKK JJJJJJJ

State Bar of Texas Honors 50-Year Lawyers

highlight of the State Bar of Texas Annual Meeting was the recognition of attorneys who have practiced law for 50 years. A ceremony was held at the General Session luncheon on Friday, June 14, 2019 to honor these longtime attorneys for their service and dedication to the legal profession. Each lawyer was presented with a pin and thoseAUSTIN in attendance LAWYER AL AL gathered for a group photo.

ABOVE: 50-year lawyers gather for a photo at the State Barâ&#x20AC;&#x2122;s Annual Meeting, held at the JW Marriott.

CONGRATULATIONS We applaud all those who achieved this milestone, especially the following members of the Austin Bar Association:

John H. Akin John C. Blazier Fleur A. Christensen Philp C. Friday R. James George Jerry L. Harris Robert J. Hull Judge Harriet M. Murphy Donald P. Wilcox Judge Lee Yeakel

SEPTEMBER 2019 | AUSTINLAWYER

The EOIR System Is Broken BY KATE LINCOLN-GOLDFINCH

Kate Lincoln-Goldfinch is the owner of Lincoln-Goldfinch Law, an immigration firm with offices in Austin and Waco. She has appeared on outlets such as the BBC, MSNBC, the New York Times, and NPR as an immigration expert. The mission of her firm is to bring peace to immigrant families. The views and opinions expressed are those of the author and do not necessarily reflect the views or opinions of the Austin Bar Association, its board of directors, or its members.

magine a criminal court system where defendants have no right to counsel and just one-third of defendants are represented. In this imaginary court system, both the judges and the prosecutors are employees who report to the Attorney General (AG) and the President. The judges lack judicial independence and have no authority to grant continuances, place cases on hold, or close cases on their docket. Prosecutors have no authority to exercise prosecutorial discretion and are ordered to pursue most extreme penalty. Many of the defenses available to defendants are not within the jurisdiction of the judge to decide. The caseload in the court has ballooned beyond capacity, and the judges are instructed to reduce the backlog by assessing the harshest punishment possible, as swiftly as possible. The appellate court and judges also report to the executive branch. Children are treated the same as adults, forced to represent themselves if 20

AUSTINLAWYER | SEPTEMBER 2019

unable to pay an attorney. This is no imaginary system. This is immigration court. In the immigration court structure of the United States, immigration judges are employees of the Executive Office for Immigration Review (EOIR), a branch of the Department of Justice (DOJ). Immigration judges are appointed by the AG. Prosecutors in the court system are employees of the Department of Homeland Security (DHS), specifically Immigration and Customs Enforcement (ICE). The Board of Immigration Appeals (BIA) is the appellate body presiding over the immigration courts. BIA judges are also DOJ employees, appointed by the AG.1 In addition to his position as chief prosecutor who appoints and supervises immigration judges and appellate judges, the AG also has the power to refer cases to himself and issue precedential decisions.2 This referral power has historically been sparingly used and is “a powerful tool in that it allows the AG to pronounce new standards for the agency and overturn longstanding BIA precedent.”3 The practice has been criticized, in particular because the agency lacks clear guidelines or procedures about the exercise of this considerable authority.4 Also, it conflicts with a core value of our legal system: the impartiality of the adjudicator. Jeff Sessions certified several cases to himself during his tenure as AG, issuing decisions that reduce asylum eligibility and limit the power of immigration judges to control their own dockets, resulting in an increased case backlog. By June 2018, the Trump Administration implemented the Zero Tolerance policy and had separated thousands of children from their parents who had brought them to the United States to seek asylum. The total number of children taken is unknown and was not tracked.5 The Zero Tolerance policy was one

Families Without Borders

of several actions taken by the administration to deter Central Americans from seeking asylum in the United States. AG Sessions delivered remarks to immigration judges in late 2017, claiming the system was being gamed by dirty immigration lawyers and border crossers using asylum as an easy ticket to illegal entry to the United States.6 AG Sessions certified to himself the case of a woman known as “A.B,” who was a victim of domestic violence in El Salvador. She lost her asylum claim in front of a judge who had a 92 percent denial rate on asylum cases.7 The BIA remanded the case to the immigration judge, instructing him to recognize her protected particular social group and to grant asylum. The judge refused and asked the AG to certify the case to himself. AG Sessions obliged and issued the decision in Matter of A-B-, holding narrowly that a previous case granting asylum protection to a victim of domestic violence was overruled.8 Yet despite the narrow holding in Matter of A-B-, the decision contained broad and sweeping dicta, asserting that “generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.”9 This decision had, and continues to have, a significant impact on asylum protections for Central Americans, most of whom are fleeing violence committed by non-governmental actors.

It also affected whether asylum seekers were even afforded the opportunity to apply for asylum. Asylum seekers who arrive at the southern border are required to pass a credible fear interview in order to earn the right to seek asylum before an immigration judge.10 This interview occurs days after an asylum seeker enters the country. Without passing this test successfully, an asylum seeker will be deported. Two days after AG Sessions’ decision in Matter of A-B-, the Asylum Office issued a memo to its adjudicators, instructing them that “[i]n general, in light of the [Matter of A-B-] standards, claims based on membership in a putative particular social group defined by the members’ vulnerability to harm of domestic violence and gang violence committed by non-government actors will not establish the basis for asylum, refugee status, or a credible or reasonable fear of persecution.11 Between July and December 2018, thousands of Central American asylum seekers who had been persecuted by private actors were denied credible fear interviews and deported.12 The assault on asylum through the court system was continued by AG William Barr on July 29, 2019 in Matter of L-E-A-.14 AG Barr closely followed the playbook of Sessions’ Matter of AB by making broad pronouncements about categories of asylum claims that will not prevail, in an attempt to affect the likelihood of success in cases not before

clear families are not inherently socially distinct.”13 During his time as AG, Sessions also chipped away at the authority of immigration judges to manage their dockets. One widely used tool was administrative closure, which allows judges to

temporarily halt removal proceedings by transferring a case from active to inactive status. This tool would be used to allow time for U.S. Citizenship and Immigration Service to decide on matters beyond the court’s jurisdiction, such as waivers, protections for victims of crime, and protections for The EOIR is particularly vulnerable to political children who have been abandoned, pressure and does not currently extend the abused, or neglected by a parent. In MatConstitution’s guarantee of due process to ter of Castro Tum, immigrants because it lacks judicial independence the former AG curtailed the immigraand is subject to influence from the other tion judges’ ability branches of government. to close cases and instructed courts to re-calendar inactive cases.14 The same year, he certified Matter of S-O-G- & F-D-B- to himself, holding that “immigration judges have no inherent authority to terminate or dismiss removal proceedings.”15 The effect of the removal of authority to dismiss or inactivate cases has caused the court backlog to balloon, exceeding 820,000 cases at the end of 2018.16 In October 2018, the DOJ implemented a case completion quota as part of the performance review process for immigration judges, requiring them to finish 700 cases per year or face disciplinary action. The pressure

him. Overturning a longstanding recognition that members of a nuclear family can be a protected particular social group, AG Barr wrote: “[In] the ordinary case, a nuclear family will not, without more, constitute a ‘particular social group’ because most nu-

on immigration judges to run an assembly-line immigration court severely undermines due process and judicial integrity. The EOIR is particularly vulnerable to political pressure and does not currently extend the Constitution’s guarantee of due process to immigrants, because it lacks judicial independence and is subject to influence from the other branches of government. The American Immigration Lawyers Association recommends that Congress create an independent court system in the form of an Article I court, modeled after the U.S. Bankruptcy Court.17 This recommendation is echoed by the National Association of Immigration Judges, the Federal Bar Association, and the American Bar Association.18 The United States’ core values of fairness, due process, and equality are not demonstrated in our immigration court system. To correct this, the court must be restructured outside of the control of the executiveLAWYER branch of our federal AUSTIN AL AL government.

Kate Lincoln-Goldfinch (center) and her staff at her Austin office.

Footnotes 1. https://www.justice.gov/eoir/boardof-immigration-appeals-bios. 2. See 8 C.F.R. § 1003.1(h) (2015). 3. Joseph Landau, DOMA and Presidential Discretion: Interpreting and Enforcing Federal Law, 81 Fordham L. Rev. 619, 640 n.89 (2012). 4. See, e.g., Memorandum of Law of Amici Curiae Am. Immigration Lawyers Assoc., et al. in Support of Reconsideration at 7–11, SilvaTrevino, 24 I. & N. Dec. 687 (Attorney Gen. 2008) (No. A013 014 303), http://immigrantdefenseproject.org/ wp-content/uploads/2011/03/ SilvaTrevino-Amicus.pdf. 5. U.S. Department of Health and Human Services, Office of Inspector General, Separated Children Placed in Office of Refugee Resettlement Care, January 2019, available at: https://oig.hhs.gov/oei/reports/oeiBL-18-00511.pdf. 6. “The system is being gamed. The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an

easy ticket to illegal entry into the United States. We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” https://www.justice.gov/ opa/speech/attorney-general-jeffsessions-delivers-remarks-executiveoffice-immigration-review. 7. https://trac.syr.edu/immigration/ reports/judgereports/00394CHL/ index.html. 8. Matter of AB, 27 I&N Dec. 316 (A.G. 2018). 9. Id. at 320. 10. 8 U.S.C. §§ 1225(b)(1)(A)(ii), (B); 8 C.F.R. § 235.3(b)(4). 11. Policy Memorandum: Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of AB [hereinafter USCIS Memo] (July 11, 2018) available at https://www. uscis.gov/sites/default/files/USCIS/ Laws/Memoranda/2018/201806-18-PM-602-0162-USCIS-

12.

13. 14. 15. 16.

17.

Memorandum-Matter-of-A-B.pdf. Original unredacted memo available at: https://cliniclegal.org/resources/ dhs-clarifies-its-guidance-matter-b. The U.S. District Court for the District of Columbia has enjoined the Asylum Office policy and ordered the return of asylum seekers who were denied under its policy. Grace v. Whitaker, No. 18-cv-01853 (EGS) (D.D.C., Dec. 17, 2018) 27 I&N Dec. at 589. Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). 27 I&N Dec. 462 (A.G. 2018). U.S. Department of Justice, EOIR Adjudication Statistics, Pending Cases, (Dec. 31, 2018). The over 820,000 cases does not account for the 35-day partial government shutdown that cancelled approximately 60,000 immigration court hearings while at the same time, DHS continued carrying out enforcement actions, Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019. American Immigration Lawyers

Association, Board of Governors, Resolution on Immigration Court Reform, Winter 2018 . 18. See National Association of Immigration Judges, Blueprint for Immigration Court Reform, 2013, available at https://www.naij-usa. org/images/uploads/publications/ NAIJ-BLUEPRINT-FOR-REFORMRevised_4-13-13-1_2.pdf, Federal Bar Association letter RE: Subcommittee Hearing of November 1, 2017: Oversight of the Executive Office for Immigration Review, available at: https://www.naij-usa.org/images/ uploads/publications/FBA-EOIROversight_Hrg._Nov_2017-Letter_. pdf, and American Bar Association, Reforming the Immigration System, 2010, available at: https://www. americanbar.org/content/dam/ aba/publications/commission_on_ immigration/coi_complete_full_report. authcheckdam.pdf.

SEPTEMBER 2019 | AUSTINLAWYER

An IOLTA Prime Partner. From Texas, For Texas. Stop by. Weâ&#x20AC;&#x2122;d love to meet you. 600 Congress Avenue, Suite G-260 Austin, TX 78701 (512) 637-5730 HorizonBankTexas.com

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

AUSTINLAWYER | SEPTEMBER 2019

THIRD COURT OF APPEALS CIVIL UPDATE

The following are summaries of selected civil opinions issued by the Third Court of Appeals during June and July 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of August 1, 2019.

PUBLIC INFORMATION ACT: Police recordings during welfare check excepted from disclosure. King v. Paxton, No. 03-18-00298CV (Tex. App.—Austin June 6, 2019, no pet. h.). A welfare check of King on her front porch was captured on video by police officer’s body-worn recording device. During the incident, officers handcuffed King, threatened to tase her, and refused to let her return inside her home. The media sought the police records from the incident. The trial court ruled that portions were excepted but others were subject to disclosure. The court of appeals held that welfare checks are not criminal, thus the law-enforcement exception to disclosure in Gov’t Code § 552.108(b)(2) did not apply. The court next addressed the application of Occupations Code § 1701.661(f), which provides that law enforcement agencies may not release recordings made in a private space without written authorization from the person recorded. Relying on Fourth Amendment cases, the court concluded that King’s porch was a private space. Thus, the recordings made on King’s front porch were excepted from disclosure. The court affirmed in part and reversed and rendered in part. The concurring/dissenting opinion concluded that King’s front porch was not a private space and recordings there were not excepted. The concurring/dissenting opinion also disagreed with using criminal law concepts in a public information case. ADMINISTRATIVE LAW: Nunc pro tunc relates back to original order, rendering motion

for rehearing untimely. Thomas & Lewin Assocs., Inc. v. THHSC, No. 03-17-00463CV (Tex. App.—Austin June 6, 2019, no pet. h.) (mem. op.). HHSC sought to recoup funds from appellant for adjustments HHSC made to appellant’s actual costs incurred. After an informal review, HHSC reduced its recoupment demand to $63,611. The ALJ issued a final order sustaining the informal review adjustments and authorizing HHSC to recoup $5,400. No motion for rehearing was filed. Months later, the ALJ granted HHSC’s request for nunc pro tunc order to correct the recoupment amount to $63,611 and signed a new order. Appellant timely filed a motion for rehearing from the nunc pro tunc order and filed suit for judicial review. The trial court granted HHSC’s plea to the jurisdiction for failure to exhaust administrative remedies. The court of appeals concluded that whether an error is clerical or judicial depends on the reason for the change, not the degree of the change. The original order first sustained HHSC’s request for recoupment and an unchallenged finding of fact stated the amount of $63,611. The order then stated an incorrect amount. Because the order first sustained the recoupment amount from the informal review decision, using an incorrect amount could only be a clerical error. Further, because the nunc pro tunc order related back to the original order, Appellant’s motion for rehearing was untimely. The court affirmed. REAL PROPERTY: Recovery of expenses requires proof of reasonableness. Nowlin v. Davis, No. 03-18-00694CV (Tex. App.—Austin June 12, 2019, no pet. h.) (mem. op.). Nowlin purchased Davis’s home. In the seller’s disclosure, Davis indicated that she was unaware of any repairs made without a permit. After closing, Nowlin discovered that a previous owner had taken out a permit for repairs

that had not been closed out. To close the permit, Nowlin had to make additional repairs. Nowlin sued, alleging Davis’ failure to disclose constituted fraud. The trial court found that Nowlin failed to prove any damages caused by the open permit and that the seller’s disclosure made no affirmative misrepresentation. The court of appeals observed that fraud theories require proof of actual damages. Nowlin offered canceled checks and a list of the amounts paid without evidence that the amounts paid for the repairs were reasonable. The court held that reasonableness of the charges was required for recovery of expenses. The court affirmed. IMMUNITY: Ultra vires claim against Historical Commission executive director denied. Grossman v. Wolfe, No. 03-1900002-CV (Tex. App.—Austin June 21, 2019, pet. filed). City sought a permit from the Historical Commission for a construction project. Commission granted City’s request to demolish existing buildings to investigate the site using ground-penetrating radar. Grossman sued Wolfe, Commission’s executive director, alleging ultra vires claims based on the permit allowing demolition before conducting archeological surveys. The trial court sustained Wolfe’s plea to the jurisdiction. The court of appeals concluded that Grossman had standing to enjoin violations of the Antiquities Code but that immunity barred his claims. The Antiquities Code and Commission rules give broad discretion regarding the need for archeological surveys and related permits. Commission determined that an archeological survey was necessary but that it was to be conducted subsurface, requiring demolition of existing buildings. The buildings had no historical or archeological value. Accordingly, Wolfe did not exceed his authority in issuing the permit. The court affirmed.

Laurie Ratliff, a former staff attorney with the Third Court of Appeals, is board certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.

CONSTRUCTION LAW: Chapter 150 did not apply in lawsuit against architect. Marquez v. Calvo, No. 03-1800597-CV (Tex. App.—Austin July 10, 2019, no pet. h.) (mem. op.). Calvo sued architect for damages arising out of the construction of his home. Architect sought dismissal for Calvo’s failure to file a certificate of merit under CPRC § 150.002. The trial court denied the motion. According to the court of appeals, whether a claim falls within the “provision of professional services” requiring a certificate of merit is determined by the plaintiff’s allegations. Calvo alleged that the architect and builder diverted funds from the project, overcharged Calvo, provided false information, and failed to complete the home. Calvo sued for negligence, misrepresentation, fraud, breach of contract, and breach of warranty. Because Calvo did not complain about the architectural plans, but instead complained about the execution of those plans, the court held that Chapter 150LAWYER did AUSTIN not apply. The court affirmed. AL AL

SEPTEMBER 2019 | AUSTINLAWYER

THIRD COURT OF APPEALS CRIMINAL UPDATE

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

Cases summarized are from March 2019 and subsequent histories are current as of Aug. 1, 2019. “ERRONEOUS RELEASE” FROM CUSTODY: Appellant was not entitled to credit for time served when authorities had failed to take him into custody while his appeal was pending. Ex parte Alvarez, 570 S.W.3d 442 (Tex. App.— Austin 2019, pet. ref’d). Alvarez was convicted of driving while intoxicated. Alvarez filed a “motion for reasonable bail pending appeal,” which the trial court granted. As a result, a Travis County deputy clerk issued a recall of the trial court’s commitment order. Alva-

rez later decided that he wanted to serve his sentence while his appeal was pending. However, no new commitment order was issued, and authorities refused to take Alvarez into custody when he reported to the Travis County’s Sheriff’s Office, telling him to “go home.” He went home to Houston, where he remained until his DWI conviction was affirmed on appeal. At that time, Alvarez was taken into custody. Alvarez filed an application for writ of habeas corpus, asserting that he was entitled to credit for time served. The trial court denied relief, and the appellate court affirmed. Alvarez relied on a line of cases from the Court of Criminal Appeals holding that “an individual is entitled to time credit toward the expiration or discharge of a sentence when the individual, through no fault of his or her own, was erroneously released from custody by the State.” The court concluded that those cases did not apply here. The court reasoned that “to allow Alvarez to receive jail-time credit based on a deputy clerk’s mistake, when Alvarez was never in jail while his appeal was pending but was instead completely free and unsupervised, would effectively enable Alvarez to avoid serving his sentence altogether.” The court also observed that Alvarez could not be credited with complying with any bond conditions and that the State’s failure to take Alvarez into custody occurred while his

appeal was pending rather than after his conviction had become final. Under these circumstances, Alvarez was not entitled to receive credit for time served.

the ordinance was Bowen’s sole issue, he had not been convicted of violating the ordinance. Thus, the exception did not apply.

ADMISSIBILITY OF “NO BILL” EVIDENCE: Trial court APPELLATE JURISDICTION did not abuse its discretion in OF MUNICIPAL-COURT APexcluding evidence that grand PEALS: Appellate court lacked jury had “no billed” extraneous jurisdiction to consider appeal of offense. municipal court order denying pretrial application for writ of Harris v. State, 572 S.W.3d habeas corpus. 325 (Tex. App.— Austin 2019, Ex parte Bowens, 572 S.W.3d no pet.). Harris was charged 322 (Tex. App.— Austin 2019, no with murder. During trial, the pet.). Bowens, who was charged district court admitted evidence with violating the City of Austending to show that Harris had, tin’s prohibition against camping on a prior occasion, assaulted in public areas, filed a pretrial someone else. However, the application for writ of habeas district court excluded defense corpus, challenging the constituevidence tending to show that tionality of the ordinance. The a grand jury had “no billed” municipal court denied relief, Harris as to that assault. On and Bowens appealed directly appeal, Harris contended that adto the Austin Court of Appeals, mitting evidence of the assault, which dismissed the appeal for without also admitting evidence want of jurisdiction. The court of the no-bill, gave the jury the explained that although a crimfalse impression that Harris inal defendant has the right to had been charged with assault. immediately appeal the denial of The appellate court disagreed, a pretrial application for writ of explaining that “the State was habeas corpus, the appeal must not attempting to prove to the be brought in the proper court of jury that Harris committed the appellate jurisdiction. The Code extraneous bad act, but only of Criminal Procedure provides testing the weight of character that county courts have exclusive testimony” from Harris’s mothappellate jurisdiction over er, who had claimed that Harris municipal-court appeals, with was “peaceful.” Thus, it would two exceptions. One of those exnot have been unreasonable for ceptions is when “the sole issue the trial court to have concluded is the constitutionality of the that there was no “misimpresstatute or ordinance on which AUSTIN sion”LAWYER for the no-bill evidence to a conviction is based.” Here, correct. AL AL although the constitutionality of

SYSTEMS, INC

PROFESSIONAL LEGAL SOFTWARE Case Management, Bankruptcy, Texting, Legal Payments, & Court Email.

Jubileepro.com - (210) 561-5300 24

AUSTINLAWYER | SEPTEMBER 2019

FEDERAL CRIMINAL COURT NEWS

Supreme Court Conflict Resolution BY DAVID PETERSON

The Eleventh Circuit affirmed. In reversing the conviction, the Court held that “the word ‘knowingly’ applies both to the defendant’s conduct and to the defendant’s status.” The Court reversed and remanded. This term the Court also: • again addressed massive sentencing enhancements, United States v. Davis, 18-431; • struck down judicial imposition of significantly increased prison sentences for sex offenders who are charged with new sex offenses, without a jury trial, United States v. Haymond, 17-1672; • held that state and federal governments can prosecute the same conduct without violating the double jeopardy clause, Gamble v. United States, 17646; and • narrowly held that Congress can delegate to the Attorney General authority to “specify the applica-

ummer was a busy time for federal criminal law. The Supreme Court decided at least five important federal criminal cases. In Rehaif v. United States, 17-9560, the Supreme Court interpreted a long-standing statute, 18 U.S.C. § 922(g), which outlaws possession of firearms by certain classes of people. Rehaif overstayed a student visa after being dismissed from university. He was told that his “immigration status” would be terminated unless he took action. He then shot two firearms at a firing range. The Government prosecuted Rehaif for possessing firearms and ammunition as an alien unlawfully in the United States. The jury was instructed that the Government was not required to prove Rehaif knew of his unlawful status, just that he had knowingly possessed a firearm. The jury convicted.

bility” of sex offender registration requirements, including whether such requirements applied to people convicted before Congress passed a law criminalizing failure to register. Gundy v. United States, 17-6086. One can speculate on why federal criminal law gets so much attention from the Court. The federal prison population has declined for six years straight, from a high of 219,298 in 2013 to 177,619 as of July 26, 2019. So why does the Supreme Court still weigh in on so many federal criminal cases? Absent a flurry of new laws, shouldn’t criminal law and procedure become relatively settled at some point? The Court is the court of last resort for federal criminal defendants, who have no recourse to state courts. But the justices’ review is discretionary, so before hearing a case at least four justices must actively believe

that a case merits review. Perhaps the justices have an ongoing interest in closely monitoring what the federal government is doing when it takes the most basic of liberties from people. Or perhaps some justices have a strong desire to leave their personal mark on criminal law and procedure. Both reasons are plausible. My personal theory is this: Courts simultaneously resolve and reflect societal conflict. Because our country has an outsized prison population, and one that reflects poorly on our stated goal of racial equality under the law, we have more conflict—not conflict caused by crime, which continues to decline, but conflict caused by mass incarceration, which is another term for the mass removal of humans from families, communities, and jobs. But my opinion is only worth the paper on which it is written. So, feel free to AUSTIN LAWYER let me know what you think. AL AL

Family Law Specialist

*Kimberly A. Edgington Tim Whitten has practiced in family law since 1992. He has been certified kim@whitten-law.com as a Family Law Specialist by the Texas Board of Legal Specialization.

w ion

Know any business owners who are facing divorce? We find business owners make some of the best clients.

Please have them call us today. Adoption

Grandparent or Non-parent Rights

Collaborative Law

High-Asset Divorce

Modifications of Custody, Possession & Support

7500 Rialto Blvd, Bldg One, Suite 250, Austin, Texas 78735

whitten-law.com | info@whitten-law.com | (512) 478-1011 26

AUSTINLAWYER | SEPTEMBER 2019

Former District Judge

patrickkeel.com

Coming Soon

in Eanes ISD | $3,125,000

ANDREW H. WARE, JD REALTORÂ® 1300 Silver Hill Drive | Rolling Hills West Contact me for more info on this property.

512.484.3409 c andrew@moreland.com SEPTEMBER 2019 | AUSTINLAWYER

Austin Bar Association Wins State Bar Awards Two Austin Bar Members Also Recognized

he Austin Bar Association brought home several awards from the State Bar of Texas’ Bar Leaders Recognition Luncheon, held on June 13, 2019 at the JW Marriott in Austin. The luncheon, was held in conjunction with the State Bar’s Annual Meeting. Each year, the State Bar recognizes local bar associations for outstanding community involvement, commitment to increasing access to justice, and dedication to the profession. The Austin Bar was presented with the Award of Merit for Division III (local bars with 901–5,000 members). The Award of Merit is an overall award for a local bar’s programming and projects. Categories considered in the selection of the award are member services, community service, access to justice, law student/young lawyer outreach, social, and communications. The Austin Bar also won the Star of Achievement Award for its Pro Bono Committee. This award recognizes outstanding member service and public service

was presented with the Frank J. Scurlock Award. This award honors an attorney who has provided outstanding pro bono work. The Pro Bono Staff Support Award was presented to Austin

The Austin Bar was presented with the Award of Merit in Division III, the Star of Achievement Award for its Pro Bono Committee, and the Outstanding Partnership Award for its Community Engagement Committee. Bar member Amber Haney, a projects. In addition, the Austin paralegal with The Haney Law Bar was presented with the Firm. This award recognizes Outstanding Partnership Award the outstanding and exemplary for its Community Engagement contributions of non-attorney Committee. This award recognizvolunteers such as paralegals, es noteworthy partnership efforts administrative assistants, and between local bar associations others who work on pro bono and non-legal entities. AUSTIN LAWYER projects. AL AL Austin Bar member Amy Warr, a partner with Alexander Dubose Jefferson & Townsend, 28

AUSTINLAWYER | SEPTEMBER 2019

TOP: (from left) Austin Bar President D. Todd Smith, Director of Communications Nancy Gray, Pro-Bono Committee Chair Caitlin Haney Johnston, State Bar of Texas PastPresident Joe Longley, Austin Bar Past-President Adam Schramek, Pro Bono Committee Past-Chair Austin Kaplan, and Executive Director DeLaine Ward accepting the awards from the State Bar of Texas. BOTTOM LEFT: Amy Warr, partner with Alexander Dubose Jefferson & Townsend, was honored with the Frank J. Scurlock Award. BOTTOM RIGHT: Amber Haney, a paralegal with The Haney Law Firm, was honored with the Pro Bono Staff Support Award.

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

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

Mediation Trainings Since 1986 40-Hour Basic Mediation Training

September

November February (CLE & SHRM) Walter Wright, J.D., LL.M.

April June (CLE & SHRM) Beth Brown, M.Ed. Diane Harvey, LCSW

30-Hour Family Mediation Training

July, 2020 (CLE) Michael Schless, J.D. Diane Harvey, LCSW Beth Brown, M.Ed.

Quality, Low-Cost ADR Services We Mediate All Types of Civil Disputes Attorney-Mediators Available Se Habla Español

www.AustinDRC.org

512-371-0033

A Nonprofit Mediation Resource Since 1983

SEPTEMBER 2019 | AUSTINLAWYER

Austin Lawyers Win Big at U.S. Supreme Court

n June 24, 2019, a team of lawyers from the Austin office of Baker Botts won a landmark Freedom of Information Act (FOIA) decision in the U.S. Supreme Court. The Baker Botts team included Austin Bar Association members Gavin R. Villareal, Evan A. Young, Thomas R. Phillips, Scott A. Keller, Stephanie F. Cagniart, and Ellen Springer. The 6-3 decision in Food Marketing Institute v. Argus Leader Media will govern all FOIA requests for private parties’ commercial information that the federal government has in its files. FOIA’s Exemption 4 protects from mandatory disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Food Marketing addressed what “confidential” means, and overturned more than four decades of precedent that required proof of a likeli-

AUSTINLAWYER | SEPTEMBER 2019

hood of substantial competitive harm for commercial information to qualify as “confidential.” The path to the Supreme Court began in South Dakota. Using FOIA, a local newspaper requested that the U.S. Department of Agriculture release nationwide sales data from retailers that participate in the food-stamp program, now known as the Supplemental Nutrition Assistance Program (SNAP). SNAP funding information is readily available, including at local levels. But USDA had never disclosed sales data at individual retail locations. It rejected the FOIA request under Exemption 4, deeming the sales data as confidential commercial information. But USDA lost at the district court and decided not to appeal. That’s where the Baker Botts team came in. The Food Marketing Institute (FMI), which has many SNAP-participating members, retained Baker Botts to challenge the judgment on appeal.

The Baker Botts team, from left to right: Gavin R. Villareal, Thomas R. Phillips, Evan A. Young, Ellen Springer, and Stephanie F. Cagniart, all members of the Austin Bar.

At the Eighth Circuit, the Baker Botts team argued that releasing the sales data would implicate the longstanding “substantial competitive harm”

standard, which every federal circuit applied in Exemption 4 cases. But it also argued that the standard itself had no basis in the exemption’s text.

When the Eighth Circuit affirmed, the South Dakota newspaper demanded USDA produce the SNAP data immediately. “We heard that the newspaper’s lawyer was in his car driving to pick up the data,” said Villareal, lead counsel for FMI. But the Baker Botts team convinced the Supreme Court to grant a rare stay and then filed a petition for certiorari, which the Court granted in January. The case became one of only 70 cases argued out of over 7,000 petitions. The timeframe to file merits

nie Cagniart and Ellen Springer were our secret weapon. They prepared me for every question I faced, and many others that the Justices didn’t have time to ask.” Young was at the Court when, on June 24, Justice Neil Gorsuch announced the judgment—a total victory for FMI. The Court agreed in Baker Botts’s D.C. offices, that Exemption 4’s plain text, not practicing questions and answers the widely accepted “substantial with Young, who argued the case competitive harm” test, must for FMI. govern future FOIA disputes. “Our preparation was extenEven the three dissenting Justices sive—we did three full moots—but agreed with FMI that the existing it paid off,” said Young. “Stephatest was improper. “We cannot approve such a casual disregard of the rules of statutory interpretation,” wrote Gorsuch, adding that “a court’s proper starting point lies in a careful examination of ordinary meaning and structure of the law itself.” The opinion has broad implications for a wide range of industries that provide confidential commercial data and information to the government. “The Court’s decision restores protections that Congress had included in the Freedom of Information Act but that had not been respected or enforced by lower courts for over 40 years,” said Cagniart. “Being part of the legal team that brought this issue to the Supreme Court so that it could rectify this long-standing error was incredibly exciting.” “It’s always satisfying to achieve the best possible outcome for a client,” said Springer, “but it’s particularly thrilling to do so after such an uphill battle to reach the highest court in the AUSTIN LAWYER land.” AL AL

“The Court’s decision restores protections that Congress had included in the Freedom of Information Act but that had not been respected or enforced by lower courts for over 40 years.” briefs and prepare for argument— set for April 22—was tight. FMI stuck with its Austin-based team to finish the job. The team spent most of the week before the April 22 oral argument in a conference room

SEPTEMBER 2019 | AUSTINLAWYER

ENTRE NOUS

Big-Bucking the System BY CLAUDE DUCLOUX

t’s flabbergasting how expensive law school has become. A financial planning website, thebalance.com, reports that “average” law school debt is $100,000. That debt is like a runner having to start a marathon 10 miles behind everyone else. Dude, you’re gonna need to hydrate. Okay, maybe the top five percent can handle it by signing on with Biglaw & Saltmines, but things are far more grim for the average young law graduate. Even if they find that vanishing entry-level job with a District or County Attorney’s office or state agency, it won’t help chip away much of that debt. Now, add this final punch in the face: The imminent entry of artificial intelligence systems into dispute resolution, document review, and legal research. It’s no wonder young lawyers are stressed. But you know what is thriving? Law school foundations! Every time I see an annual report from the big law schools, the amount of money they’ve lured, captured, and stacked up from their alumni is breathtaking. Clearly, there are many reasons for this—even some good ones. But let’s start with the most obvious. As I wrote a decade ago, whatever genius came up with the “Super Lawyer” concept will have the corner office for life. There is no amount of money that lawyers won’t pay for self-adoration and perceived importance. What is the going rate for a full-page ad these days—$55,000? And that’s not counting the price of the Armani suit and sneer instructor. Is it any wonder law schools wanted to hop on this glory train, too? So, when your alma mater woos you with appeals to professional immortality, they know your amygdala sparks with excitement and your endorphins flow with euphoria, leading to your “out-of-checkbook” experience. I admit, I have never been 32

AUSTINLAWYER | SEPTEMBER 2019

good at asking folks for money. I’d much prefer doing anything, including trying a divorce in Hays County, rather than asking someone for money. Undoubtedly, that reluctance resulted from 10 years of Catholic school fundraising. At my parochial school, Our Lady of Eternal Bruising, we were forced to go door-to-door at least three times per year, selling everything from candy to raffle tickets. How many people really want to buy a ticket for a chance to win a rosary made out of the teeth of martyrs? But these law school money handlers are pros. When I served as chair of the Texas Bar Foundation, we understood that our chances of getting a big donation increase by offering something tangible—a title, a plaque, or free parking in Austin. Likewise, law school foundations have invented dozens of categories of giving by offering to put your name on everything from a building, to a classroom, to a restroom. Thus (and this is true), you can attend a class at Texas Tech School of Law in the Mark Lanier Professional Development Center and refresh yourself in the Dicky Grigg Men’s Room (slogan: “Be brief and wash your hands”). Now that’s student relief. A 2017 tax return indicated one foundation had income of $18 million dollars and assets of over $200 million dollars. Wouldn’t you hope that ultimately all this generosity would result in benefit to the law students? How about underwriting tuition or free laptops? To check this out, I made an appointment at an unnamed Texas law school, to talk to their “Dean of Giving Lots of Money,” Professor Schmidt Geldgreifer, who was kind enough to meet me.

DUCLOUX: Thanks for your time today, Professor, I just have a few questions. PROF: Happy to help. Before we get started, would you like a latté from the Bickel-Brewer coffee machine? You can order it with sanctions. DUCLOUX: No, I’m fine. So, how long have you served as Dean of G.L.M.? PROF: I think it is about eight years now. DUCLOUX: Your résumé says four years. PROF: Seems longer. DUCLOUX: Can you tell me the categories of giving and what the donor is entitled to expect at each level? PROF: I thought you’d ask, so I brought the menu. Take a look. DUCLOUX: Menu? PROF: Yes, giving is the lifeblood of the law school. So we offer more options than a Taco Bell to honor yourself and your career. DUCLOUX: I see a chaired professorship exceeds $100,000. How many are there now? PROF: Who knows? But the chairs are expensive, and the donor gets to pick the fabric. Plus the portrait of course. DUCLOUX: Portrait?

PROF: Yes, for an extra $19,000 we will create a donor portrait to hang in a place of our choice. DUCLOUX: That’s…um…nice. So I see your foundation is now valued at more than $200 million dollars. How much do you use to underwrite tuition to make the school more affordable? PROF: I don’t have that figure, but I’m pretty sure we do something. DUCLOUX: What about funding for curriculum? Do you provide students laptops, or other modern devices? PROF: We’ve been thinking about that. There’s an entire committee considering instituting something like that. Probably start small…Earbuds. Thermoses. DUCLOUX: Well, what DO you actually spend money on? PROF: Oh, you know, supplementing faculty salaries and benefits, home loans. DUCLOUX: Do you supplement the paltry stipends the school pays for course instructors? PROF: Not if we don’t have to. And we don’t. DUCLOUX: How has curriculum changed? PROF: Well, knowing that legal research is fairly computerized, we replaced that course with LAW355M—Duties of Alumni After Graduation. It stresses each student’s

fiduciary duty to give us money. DUCLOUX: That’s not how fiduciary duty works. PROF: I wouldn’t know. I’m not an accountant. DUCLOUX: What about actual legal skills like client relations and operating trust accounts? PROF: I think there’s an app for that stuff on the Google. Perhaps a clinic or something. It’s not core curriculum like “Advertising for Personal Injury Lawyers” and “Making Social Media Work for You.” DUCLOUX: But what about bar exam prep? PROF: Eww. DUCLOUX: I see. I think that’s all I have. Needless to say, I learned a lot. Every single day I appreciate that I benefited from a public commitment to invest in education. Maybe someday we’ll get back to that. In the meantime, check out my new foundation: Famous Lawyers of Wisdom. You’ll love my chair fabrics. AUSTIN LAWYER L AL —Keep the A faith.

SEPTEMBER 2019 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN SANDY BAYNE, BAYNE LAW

Stepping Out in Our Community “The greatness of a community is most accurately measured by the compassionate actions of its members.” —Coretta Scott King

“Non nobis solum nati sumus” (Not for ourselves alone are we born.) —Marcus Tullius Cicero

elcome to the 2019-2020 bar year! I am so honored and excited to be AYLA’s president this year. There are so many exciting things that we are working on, not only for our members, but for our community. Mrs. King’s quote at top is such a powerful one. It reminds us of the importance of our community’s actions. AYLA is an organization that brings together its members to provide impactful and compassionate services to our community. There are so many ways to get involved and help, regardless of your interests or legal specialty. We have monthly days of service led by a strong team that organizes volunteer opportunities with organizations such as Habitat for Humanity, the Central Texas Food Bank, Austin Pets Alive, the Austin Animal Center, and the Austin Parks Foundation. We also have opportunities to serve at Volunteer Legal Services’ Wednesday clinics and at the Austin Bar’s Free Legal Advice Clinic for Veterans. This past year, we also had the privilege of going to Community First! Village to draft advance directives and wills for the chronically homeless. 34

AUSTINLAWYER | SEPTEMBER 2019

Not to toot our own horn, BUT, I am proud to point out that AYLA won the American Bar Association’s 2019 Award of Achievement for our comprehensive programs. Our members’ compassionate actions have been recognized by the national bar association! This should inspire us even more to keep on serving each other and our community. Unfortunately, the local and national news these days can be very troubling and hard to watch. There are so many unfortunate members of our community who need help. It’s so easy to get caught up in our busy lives and workloads and forget that there is a lot we can do outside of our offices. At a recent Docket Call, I had the privilege of speaking to one of our newer members who is a regular volunteer for the VLS clinics. She stated that she gets more out of the clinics than the people she helps. This is such a telling sentiment. The compassionate action of her volunteering and service keeps her spirits lifted. It’s a win-win! The greatness of our community gives me comfort in these turbulent days. We are so fortunate to have an overwhelming amount of compassionate action given by our AYLA and Austin Bar members. Our annual Judicial Reception is one of our most popular events of the year. Join us on Sept. 19, 2019 at the Austin Club for an opportunity to mingle with members of our judiciary. We are so grateful to our local judges who give up time from their busy schedules to meet

with our members. Our young lawyers treasure these intimate conversations with judges. So bring a friend or officemate to the Judicial Reception. If they aren’t currently a member of AYLA, they can sign up online or at the event. We always have delicious food, drinks, and great networking opportunities. I challenge you to close your laptop at 5 p.m. one day in the

coming months and bring a friend or colleague who has yet to become involved with AYLA to an upcoming event. The Judicial Reception is the perfect place to start. Also, my door (a.k.a. inbox) is always open. I’d love to hear from you if you have any ideas, suggestions, or comments. I encourage you to step outside your office and get active in our AUSTIN LAWYER GREAT community! AL AL

UPCOMING EVENTS THURSDAY, SEPT. 19 AYLA Judicial Reception The Austin Club, 110 E. 9th St. 5:30 – 7:30 p.m. THURSDAY, OCT. 17 AYLA Docket Call Mean Eyed Cat, 1621 W. 5th St. 5:30 – 7:30 p.m. SATURDAY, OCT. 26 Bar & Grill Scottish Rite Theater, 207 W. 18th St. Doors open at 7 p.m. Show starts at 8 p.m.

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Member Spotlight: Neha Paymaster AYLA: Tell us a little bit about yourself and your law practice. Paymaster: I was born in New York and raised in the small town of Port Jefferson on Long Island as the youngest of three girls in an Indian family. Education and planning have always been an important part of my life. I spent four great years in California at the University of California— Santa Barbara, graduating with a degree in Psychology and a minor in Applied Psychology. I moved to Texas in 2011 and worked as a legal assistant at Eccles & McIntosh for one year before heading off to Waco to obtain my juris doctorate from Baylor Law School. In February of 2016, I rejoined Eccles & McIntosh, this time as an associate attorney. I currently live in Pflugerville with my husband and eight-year-old German Shepherd, Koda. For the past three and a half years, my practice has been primarily focused on estate planning, probate, trusts, and guardianships. I assist clients in putting together the right estate plan, help clients navigate their role as the personal representative of an estate, and

guide them through the process of determining whether guardianship is the appropriate choice in their particular situation. AYLA: Could you describe your involvement with Community First! Village legal clinics? Paymaster: As a volunteer at the Community First! Village legal clinics, I have had an opportunity to assist residents of the Village with completing their disability/ life documents. I frequently help clients execute these documents in my practice, so I understand how important it is to have them in place. Assisting the residents in determining who would be a qualified agent when it comes to making financial or medical choices if they become incapacitated is an invaluable gift that we have been able to provide through the legal clinics. After serving at the first clinic, I was eager to come back to the following clinics to assist AYLA and work with the residents. AYLA: Why is conducting volunteer legal work important? Paymaster: Unfortunately, not every person can afford to pay for

legal representation. However, it is almost certain that every person will need some type of legal representation at some point in their life. Cost should not be a barrier to obtaining effective legal representation. As attorneys, we have the ability and duty to share our expertise with a larger portion of the population by donating a portion of our time throughout the year to pro bono work. Through volunteer service we can continue to strengthen our communities. AYLA: What would you tell an attorney who did not feel qualified to give volunteer legal advice outside their specialty area? Paymaster: Reach out to an attorney who is qualified to assist you! You will be surprised at how willing the Austin legal community is to help and guide an attorney providing volunteer legal services. I relied on the expertise of more seasoned attorneys when I took on my first pro bono case outside of my practice area, and I learned so much about myself in the process.

AYLA: What’s your best piece of advice for fellow young attorneys? Paymaster: Network, network, network! Go out there and continue to learn about the Austin legal community. Find organizations that you feel passionate about and get involved either as a member or on a board. Find a mentor or mentors who can provide support and guidance throughout your career. The more that you get out there, the better equipped you willAUSTIN be to assist your clients and LAWYER AL AL the community.

Bar & Grill Casting Call

an you sing, act, dance, or build props? Or do you just really like attention and supporting AYLA projects? If so, come to the Bar & Grill casting call on Monday, Sept. 9, 2019 at 6 p.m. at the Austin Bar offices, located at 816 Congress, Suite 700. If you have not been part of a Bar & Grill show before, you will be asked to read a few lines from the script, sing a song of your choice (if you want to sing in the show), and show off some of your dance moves.

SEPT 9 AYLA BAR & GRILL CASTING CALL AUSTIN BAR OFFICES 816 Congress, Suite 700 6 p.m.

If you have been in the show before, you need not attend the casting call. Contact Amanda Arriaga at missmanda01@gmail.com if you plan to attend or if you need AUSTIN LAWYER AL AL more information. SEPTEMBER 2019 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

A Year of Partnership with Community First! Village

YLA held the last quarterly legal clinic for the 2018-2019 bar year on the evening of July 31, 2019. For the past year, AYLA partnered with Community First! Village (CFV) to provide needed legal services. At the beginning of the bar year, AYLA board member and co-chair of the legal clinic, Erin Smith Bennett met with CFV staff to determine the needs of the “neighbors,” as the residents of CFV are called. CFV provides the once-homeless not only a home but a community of resources. Because the average age of a CFV neighbor is 50, and because of the chronic health issues typically found in people who have lived on the streets for an extended period, completing end-of-life documents was determined to be a critical need for this community. The clinics were held in October, January, April, and July. AYLA lawyer volunteers helped CFV neighbors complete almost 100 life-document packets, consisting of powers of attorney and medical directives. They also an-

swered general legal questions. At the April clinic, AYLA held a longer legal fair that included the Lawyer Referral Service and the Travis County Law Library. The UT Expunction Clinic also provided support by answering general legal questions regarding expunctions. AYLA member and legal clinic co-chair Meghan Kempf organized a social services fair, for CFV neighbors to meet with and access service providers. At the last two AYLA volunteers at a Community First! Village legal clinic. clinics, volunteers explained how to dent Amber Haney also deserve and probate attorneys Neha draft holographic wills. special recognition for providing Paymaster and Liz Nielsen, who AYLA is proud of our attorney and coordinating hours of direct provided assistance at each of the volunteers and the legal outreach volunteer support and notary clinics, and Jennifer Hopgood, they provided at CFV. AYLA also assistance at each of the four who co-chaired the legal clinics. AUSTIN appreciates the assistance of LAWYER clinics. The Capital Area Paralegal Travis County Women Lawyers’ AL AL Association and CAPA PresiAssociation board members

Community Service Days Kicks Off Another Great Year

he AYLA Community Service Days project is kicking off the new bar year with a great lineup of monthly volunteer opportunities for all Austin lawyers and their guests. The next few events are part of our continued partnership with ABGB’s aptly named “Hell Yes VolunBeer Night,” where Austin lawyers spend a few hours lending a hand for a local charity, followed by good conversation and free ABGB beer. The first event took place on Aug. 27 at the Central Texas Food Bank. The second event will be on Sept. 10 at 6

AUSTINLAWYER | SEPTEMBER 2019

p.m. at the Austin Pets Alive! more about Store, located at 1409 W. Oltorf. other upcoming The third event, on Oct. 29 at 6 events. You can p.m., will be another opportunity also check out to volunteer for the Central Texas the CommuFood Bank, located at 6500 nity Service Metropolis. Days Facebook In addition to partnering with group. Search ABGB’s VolunBeer Night, future “Austin Young events include volunteering Lawyers – Comwith the Green Corn Project, AUSTIN munity Service LAWYER the Austin Parks Foundation, AL AL Days.” Habitat for Humanity, and other charities across Austin. Watch for announcements in Bar Code for more information or to sign up AYLA provided 960 to help with Community Service meals for the Central Days. Go to ayla.org to learn Texas Food Bank.

SEPTEMBER 2019 | AUSTINLAWYER

PRACTICE POINTERS

Why I Love Being a Solo Attorney BY AMY E. MITCHELL

Amy E. Mitchell manages an Austin-based boutique entertainment law firm that has served creative professionals in the music, film, and television industries since 2004. She is the founder and chair of the Entertainment & Sports Law Section of the Austin Bar Association and course director for the State Bar of Texas’s annual Entertainment Law 101 program. Email amyemitchell.com for more information.

“Go confidently in the direction of your dreams. Live the life you have imagined.” These words by Henry David Thoreau adorn the wall of my home office. They have also defined my approach to practicing law for the past 15 years. Unlike most of my peers, I attended law school with tunnel vision—solely to become a music lawyer. However, upon gradua-

tion, the music law job at a firm or record label simply did not materialize. I was faced with the choice of either abandoning my dream or forging an unexpected path. I chose the latter, and I’m happy to report that it has worked for me. I am now in year 15 of running a solo entertainment law practice in Austin, and each year has proven to be better than the last. My joy in being a solo practitioner can be summed up in one beautiful word—flexibility. Being a solo has given me freedom that most of my attorney friends only dream of. Here are a few reasons why. Set my own work hours and location. I work from home most days and decide what hours my office is open for business. My current work schedule is Monday through Thursday 10 a.m. to 5 p.m., and I typically block-schedule prospective client calls and in-person meetings to maximize my billable time. Be a more involved family member. In general, I get to stipulate when I’m not willing to work. As a mom of three kids under the age of five, I block off my work schedule for all kinds of kid activities—swim lessons, music classes, school drop-offs and pick-ups. Admittedly this is

less viable for litigators, but it has been feasible as a transactional lawyer and invaluable as a mom and wife. Refuse representations. Does the prospective client sound like he’s going to be difficult to communicate with? Will she nitpick bills? I love having the freedom to say, “I’m not a good fit” and/or “I do not have the bandwidth to take on a matter right now.” Similarly, being a solo means that I can be more accommodating with client matters that I want to take on (e.g., offering discounted rates). Enjoy job security. I never live in fear that I will be upstaged by an associate or kicked off a case. My firm would not exist without me. Make more money (but probably not right away). Running your own firm means that you set your own fee structures and billing rates. You can be creative— offering sliding scale rates or bundled/unbundled services. Plus, if you have low overhead (something you can control!) you can take the lion’s share of those legal fees as take-home pay. Frankly, I was astounded when I did the math. Figure a $160,000 annual salary with a 2,000 billable hour requirement. Without factoring in any non-billable time or extra partner-track

hours, the big firm lawyer actually makes only $80 per hour. Now figure that you are a solo attorney billing at a modest rate of $250 per hour. Even if you factor in $40,000 in overhead expenses per year, you would still only need to bill 800 hours per year to take home $160,000. Obviously the above is an over-simplification, but I would bet that most successful solos are taking home far more than $80 per hour, even if you count all of their non-billable time. To be clear, there are challenges to running a solo practice, and it’s certainly not for everyone. If you have only worked in a job where someone else landed the clients, assigned you work, and guaranteed you a salary, then it’s easy to get overwhelmed operating as a solo attorney. You will need to wear a lot of hats, especially in the early days. You may have a newfound respect for law firm administrators as you work to figure out fee structures, draft engagement letters, evaluate practice management software, etc. That said, if you are confident in your legal abilities and stick with it, you might just find that you are living the life you had imagined. Or, if you are lucky, like me, your life may actually be AUSTIN LAWYER AL AL even better than you imagined.

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

AUSTINLAWYER | SEPTEMBER 2019

“Constable 5: your eFile service experts.”

Senior District Judge

~ Constable Carlos B. Lopez 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 syelenosky.com

Anji Maddox

512-444-2226

sy@syelenosky.com

Offices in Austin, Round Rock and Dallas

ADVERTISERS ADVERTISER . . . . . . . . . . . . . . . . . . PAGE

Foster, LLP . . . . . . . . . . . . . . . . . . . . 4

LawPay . . . . . . . . . . . . . . . . . . . . . . . . 2

Apple Leasing . . . . . . . . . . . . . . . . . . 5

Goranson Bain Ausley . . . . . . . . . 25

Argent Financial Group . . . . . . . 18

Gray & Becker, PC . . . . . . . . . . . . . 18

LegalPRO Systems, Inc./ Jubilee Notices . . . . . . . . . . . . . . . . 24

Armbrust & Brown, PLLC . . . . . 13

Grossman Law Offices, P.C. . . . 16

Moreland Properties . . . . . . . . . . 27

arrangeCARE pc . . . . . . . . . . . . . . 24

Horizon Bank . . . . . . . . . . . . . . . . . . 22

The Gottfried Firm, P.C. . . . . . . . 38

Briggs & Veselka Co. . . . . . . . . . . 10

Judge Stephen Yelenosky . . . . . 39

Noelke Maples St. Leger Bryant, LLP . . . . . . . . . . . . . . . . . . . . 37

Broadway Bank . . . . . . . . . . . . . . . 40

Kaplan Law Firm . . . . . . . . . . . . . . 30

Patrick Keel . . . . . . . . . . . . . . . . . . . 27

BurnettTurner, PLLC . . . . . . . . . . 31

UT Austin Center for Professional Education . . . . . . . . 9

Capps Law Firm, PLLC . . . . . . . . 3

Knolle, Holcomb, Callahan & Taylor, P.C. . . . . . . . . . . . . . . . . . . . 37

R3 Digital Forensics . . . . . . . . . . . 15 Red Mass/ Diocese of Austin . . 27

Thomas Esparza, Jr. P.C. . . . . . . . 33

Cogburn Law Firm . . . . . . . . . . . . 33

Lakeside Mediation Center . . . 22

She Spies Private Eye, Inc. . . . . . 39

Vaught Law Firm . . . . . . . . . . . . . . 18

Constable 5 . . . . . . . . . . . . . . . . . . . 39

Laurie Ratliff LLC . . . . . . . . . . . . . . 13

Shuart & Associates . . . . . . . . . . . 37

Law Office of Tim Whitten . . . . 26

West, Webb, Allbritton & Gentry, P.C. . . . . . . . . . . . . . . . . . . 29

Dispute Resolution Center . . . 29

Susan Eisen Inc. . . . . . . . . . . . . . . . 3

Texas Lawyer Insurance Exchange . . . . . . . . . . . . . . . . . . . . . . 4 The Club at Horseshoe Bay Resort . . . . . . . . . . . . . . . . . . . . . 29 The Snell Law Firm, PLLC . . . . . 11

SEPTEMBER 2019 | AUSTINLAWYER

Each client is unique, and so are our solutions. Customized Private Banking made for you. You know how you want to live your life today â&#x20AC;&#x201D; and tomorrow. At Broadway Bank, our team will assess your unique needs and provide sound financial solutions. Managing your finances is important at any stage in life and should be planned with a partner who understands the life you want to live. Concierge Banking | Customized Lending | Business Solutions | Portfolio Mortgages (512) 805-0981 | broadway.bank Membership qualifications for Private Banking at Broadway Bank apply. Member FDIC Rev. 08/19 / #44653

Austin Lawyer, September 2019

Articles inside

Austin Lawyers Win Big at U.S. Supreme Court

The EOIR System Is Broken

Update on Austin Bar’s Hilgers House

Austin Bar Association Offers Special Membership Rates